HomeMy WebLinkAboutRFQ - Request for QualificationsLARRY M. SPRING CARLOS A. MTGOYA
Chief Financial Officer City Manager
ADDENDUM NO, 3
RFQ No. 222246
August 4, 2010
Request for Qualifications (RFQ) for Commercial Solid Waste Hauling Services
TO: ALL PROSPECTIVE PROPOSERS:
The following changes, additions, clarifications, and deletions amend the RFQ documents of the above captioned
RFQ, and shall become an integral part of the Contract Documents. Words and/or figures stricken through shall be
deleted. Underscored words and/or figures shall be added. The remaining provisions are now in effect and remain
unchanged. Please note the contents herein and reflect same on the documents you have on hand.
THE CLOSING DATE AND TIME FOR THIS RFQ HAS BEEN EXTENDED. THE NEW CLOSING DATE AND TIME
1S:
• Friday, August 13, 2010 at 2:00 p.m.
HEREIN AFTER, THE FOLLOWING MODIFICATIONS HAVE BEEN MADE TO SPECIFIC SECTIONS OF THE RFQ
SOLICITATION DOCUMENTT,
Section 2.12, Insurance Requirements, of the RFQ solicitation document has been modified as follows:
(5) Performance Bondllrrevocable Letter of Credit in the amount of $25,000 35,000
City included as obligee on the bond and sole beneficiary on the letter of credit.
Section 2.16, Performance Bond Requirements, of the RFQ solicitation document has been modified as
follows:
The Qualified Proposer (s) agrees to maintain, for the term of this Agreement, a Performance Bond,executed
by a surety company duly authorized to do business in the State of Florida, which shall be counter -signed by
an agent for the company, resident in the State of Florida. The amount of the bond shall be equal to the
Qualified Proposers previous 12 month franchise fees paid to the City (including the annual franchise fee,
monthly 24% franchise fee, annual per account fee, and any other franchise fees paid to the City) or a
minimum of $25.000 35,000, whichever is greater, as security for the faithful performance of the Franchise
Agreement. The surety shall have a rating classification of "A-" and a financial category of Class V as
evaluated in the current Bests Key Rating Guide, Property Liability. City of Miami shall appear listed as
obligee. In lieu of a Performance Bond, the Qualified Proposer may submit an Irrevocable Letter of Credit,
cash, certified check, treasurer's or cashier's check issued by a responsible bank or trust company
payable to the City of Miami.
The Performance Bond, in a form acceptable to the City, shall be submitted together with four (4) original
signed copies of the Franchise Agreement and an approved insurance certificate(s), listing the City as
Additional Insured, to the Purchasing Department within ten (10) business days after receipt of Notice of
Award, and prior to final execution of the Agreement by the City.
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NOTE: Performance Bori``.,s placed under the current Commercial .Baste Hauling Services Franchise
Agreement # 03-04-107 cannot be rolled aver or transferred to the new Commercial Solid Waste Franchise
Agreement solicited through RFQ 222246. This is a new solicitation process and current and new franchise
holders are required to meet the performance bond requirement. Once the new Franchise Agreement is fully
executed, the performance bonds submitted under the Commercial Waste Hauling Services Franchise
Agreement # 03-04-107 will be returned to the respective franchisees.
HEREIN AFTER, THE FOLLOWING MODIFICATIONS HAVE BEEN MADE TO SPECIFIC SECTIONS OF THE
COMMERCIAL SOLID WASTE FRANCHISE AGREEMENT. A REVISED FRANCHISE AGREEMENT, WITH THE
MODIFICATIONS INDICATED BELOW, IS ATTACHED HERETO AS EXHIBIT A.
The title of the Commercial Solid Waste Franchise Agreement has been modified as follows:
CITY OF MIAMI
NON-EXCLUSIVE
COMMERCIAL SOLID WASTE
FRANCHISE AGREEMENT
BETWEEN THE CITY OF MIAMI
AND
Page 1 of the Commercial Solid Waste Franchise Agreement has been modified as follows:
THIS CITY OF MIAMI NON-EXCLUSIVE COMMERCIAL SOLID WASTE FRANCHISE
AGREEMENT ("AGREEMENT"), made and entered into this day of , 2010 by and between
the City of Miami, Florida, a municipal corporation organized and existing under the laws of the State of
Florida, (hereinafter referred to as "CITY") and , Inc.
a corporation, qualified and authorized to do business in the State of Florida,
(hereinafter referred to as "FRANCHISEE").
WITNESSETH:
WHEREAS, on September 28, 1999, Ordinance No. 11837 was passed by the Miami City
Commission which amended Chapter 22, entitled Garbage and Other Solid Waste, of the City Code to replacc
allow regulatory permits for providing non-exclusive Commercial Solid Waste Services with Commercial
Franchises to qualified firms; and
WHEREAS, the City Commis h., dete ^od that it [s it the_boot interest of the CITY to bcuc a
Commercial Franchise to FRANCHISEE to engage in G ""' t G "^^tion Se ces •-thin the CITY
and
WHEREAS, FRANCHISEE is desirous of obtaining a non-exclusive Franchise from the CITY to
provide Commercial Solid Waste Collection Services within the CITY as set forth herein; and
WHEREAS, the CITY bclicvcs that the Franchising of the Commercial
itional revenues and better services for
commercial solid-waste-cu^m crnrrc and
Section 2.2 under Article II, DEFINITIONS, of the Commercial Solid Waste Franchise Agreement has been
modified as follows:
Agreement shall mean this €raaehise FRANCHISE AGREEMENT, as it may hereinafter be amended or
supplemented.
Annual Franchise Fee shall mean the yearly fee charged by the City to each r-a-nohisee FRANCHISEE who
operates within the City limits and collects garbage and trash. See Section 22-50(b) of the City Code.
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Annual Specialized Wash. Handling Fee shall mean the yearly fee (charged by the City to each Franchise
FRANCHISEE who operates within the City limits and collects trash, excluding garbage. See Section 22-50(c)
of the City Code.
Commercial Business shall mean and include all retail,. professional, wholesale, and industrial facilities and
any other commercial enterprises, for profit or not for profit, offering goods or services to the public. This
definition incorporates by reference the definition of "Commercial Establishment" set forth in § 15-1 of the
Miami -Dade County Code.
Commercial Hauler shall mean a licensed City of Miami Franchisee FRANCHISEE that operates within the
City limits and provides certain services to Multi -Family and Commercial establishments including but not
limited to the following; garbage, trash, recycling, roll -off, and specialized waste handling service, etc.
Franchise Fee shall mean the monthly percentage of Gross Receipts remitted to the City by each Fr nchisee
FRANCHISEE. See Section 22-56(b) of the City Code, as amended. This fee may be amended or adjusted by
the City, from time to time, by amending this section of the City Code, and the FRANCHISEE acknowledges
and agrees that the monthly percentage of gross receipts payable, as amended, or adjusted, will automatically,
apply to this Agreement and that the FRANCHISEE will promptly execute an addendum or amendment
recognizing the FRANCHISEE's obligation to pay such adjusted or amended fee as of the effective date of
such amendment. Failure to pay such FRANCHISEE fee , as adjusted or amended, or failure to execute the
addendum or amendment to this Agreement FRANCHISEE shall be deemed as in default of this Agreement
pursuant to Article IX. Should a default occur pursuant to Article IX, then this Agreement will be terminated
Pursuant to Article X.
Gross Receipts shall mean all monies, whether paid by cash, check, debit or credit, collected from customers
resulting from all transactions and activities in the FRANCHISEE'S regular course of business and trade
including garbage, industrial, solid waste, used cooking oil waste, portable toilets and sanitation,
environmental charges and fees, containerized waste, environmental waste services (vector), equipment
rental and leasing, fuel surcharge, construction and demolition debris, roofing materials, trash, litter,
maintenance, compactors, refuse and/or rubbish collection removal and disposal services rendered, hand bag
collection, recycling, or from any other source related directly or indirectly from waste collection services,
including, without limitations, all income derived from leasing and renting of real or tangible personal property,
the use of dump trucks, grappling trucks, roll -off trucks, trailers, roll-off's, boxed in, framed, fenced in, or
otherwise designated storage areas, etc., containers, bagsters, shoot chutes, and any other vehicles and
equipment used for collection and disposal of any debris by the FRANCHISEE, exclusive of taxes as provided
by law, whether wholly or partially collected within the CITY, less bad debts. Gross Receipts shall not include
income derived from the transportation, storage, treatment, collection, and removal of biomedical, biological, or
hazardous waste as herein defined.
Permit Per Account Fee shall mean the annual charge assessed by the City beginning each October 1, a
thcr after, for each new account and roll -off that is acquired or maintained throughout the Fiscal Year, by
FRANCHISEE, for every account with— hom they contract for the provision of commercial solid waste
services.
Specialized Waste Handling Services shall mean the collection and disposal of solid waste that requires
special handling and management, including, but not limited to white goods, waste tires, used oil, lead -acid
batteries, construction and demolition debris, ash residue and biomedical and biological waste. It should be
noted that these are Franchisees FRANCHISEES that are in the roll -off collection business and do not collect
garbage.
Section 3.1 under Article III, GRANTEE, of the Commercial Solid Waste Franchise Agreement has been
modified as follows:
The CITY grants unto the FRANCHISEE the continued non-exclusive right and privilege, with related
obligations, to provide commercial solid waste services in, under, upon, over and across the present and
future streets, alleys, bridges, easements, public rights -of -way and other public places within the CITY
boundaries, present and future, for contracted multifamily, commercial business, governmental, religious,
educational, profit and non-profit agencies and/or property owners for solid waste collection and disposal
services.
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Section 3.2 under Article III, GrfiANTEE, of the Commercial Solid Wasiu Franchise Agreement has been
modified as follows:
The CITY further grants unto the FRANCHISEE the non-exclusive right and privilege, with related obligations,
to provide solid waste collection and disposal services for construction, demolition and renovation sites located
within the CITY on a contracted basis.
Section 4.5, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise
Agreement has been modified as follows:
In cases of natural or man made disasters, the City Manager may grant the FRANCHISEE reasonable
variance from regular schedules and routes. As soon as a declaration of an emergency is issued by the
Mayor, FRANCHISEE shall make reasonable efforts to secure its containers in order to prevent hazards
and/or threats to public safety and health. As soon as practicable after such disaster, the FRANCHISEE shall
advise the CITY and its customers of the estimated time required before regular schedules and routes can be
resumed.
Section 4.11, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise
Agreement has been modified as follows:
FRANCHISEE agrees to strictly adhere to the provisions of Section 22-46 and Section 22-93, as amended, of
the City Code which states it shall be unlawful for any FRANCHISEE to provide service to any commercial
property within 100 feet of a residential district between the hours of 11:00 p.m. and 7:00 a.m., and to strictly
adhere to any other terms and provisions of this Agreement as specified in the Notice of Violation, except and
only as determined by the Director of the Department of Solid Waste.
Each Fiscal Year (October 1, through September 30), the amounts assessed for non-compliance of this
section will be as follows:
18t Non -Compliance:
2nd Non -Compliance:
3rd Non -Compliance:
Each Additional Non -Compliance:
$ 250.00
$ 500.00
$1,000.00
$1,000.00
FRANCHISEE agrees to comply with Section 15 of the Miami -Dade County Code, entitled 'Solid Waste
Management", as amended. All Multi -Family and Commercial establishments are required to initiate a
recycling program. The recycling program shall be serviced by a licensed City of Miami FRANCHISEE.
Failure of FRANCHISEE to provide a recycling program shall cause a default in this agreement pursuant to
Article IX: failure to cure said default may result in termination of said agreement pursuant to Article X.
Section 4.11.2, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise
Agreement has been modified as follows:
Management", as amended. AD Multi Family and Commercial establishments arc rcquired to initiatc a
id -Waste" as faliews
vehicle:
$250.00. See Section 15 2.1, Miami Dade County Code.
Failure by multifamily —residential cctablichment having up to 25 units to provide a recycling program —in
compliance w'
prnriram in compliance with the requirements of Section 15 2.2. $650.00. See-5est+on 15 2.2, Miami Dada
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{
a:.w. e by . ultifamiI hment ha n.g 101 nr more ui i,ts to provide a recycling program -in
...��u v,w„n,�.0 e-i ��u vrn ,v-rv�ea-r
ion 15 2.2. $g50,00. Sec Section 15 2.2, Miami Dade County Code.
program in compliance with the requirements of Section 15 2.3. $300.00. See Section 15 2.3, Miami Dade
County Code.
For any other failure to comply with the terms of this Agreement, the following amounts will be due as
liquidated damages and not as a penalty, for the violations of the Agreement as specified in the Notice of
Violation.
First Violation:
Second Violation:
Third Violation:
$ 250.00
$ 500.00
$1,000.00
Each Additional Violation: $1,000.00
These amounts are established for the failures by the F-FaneIa4sae FRANCHISEE to comply with this
Agreement. It is not the intention of the City to assess the entire amounts for minor failures to comply with the
Agreement unless they are of a recurring or continuing nature. The City reserves the right to assess twenty
20%) of the amounts set forth in this section for minor failures to comply with the Agreement. The exact
damages suffered by the City cannot be known or ascertained and these amounts represent liquidated
damages due at the time of the violation.
Section 4.11.3, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise
Agreement has been removed and incorporated into Section 4.11.2.
/1.11.3 For any other failure to comply with the terms of this Agreement, the following amounts will be due as
liquidated damages and not as a penalty, for the violations of the Agreement as specified in the Notice
of Violation.
First Violation: $ 250.00
coed `'ieliea: $ 500.00
Third Violation: $1,000.00
Each Additional Violation: $1,000.00
not the --intention of -the Cfty fn ace
rocs the right to assea.
twenty (20%) of the amounts sat forth in this section for minor failures to comply with the Agreement.
The exact damages suuffered by thie--City can-not—beknewr ascertained -any -these is
represent liquidated damages uc at the --time of -the ri^I��.Qlation:---
Section 4.12, under Article 1V, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise
Agreement has been modified as follows:
FRANCHISEE is required, pursuant to Section 22-2 of the City Code to notify the Department of Solid Waste,
at least seven business days prior, of accounts for which it will discontinue service and advise if said accounts
are in arrears. Should any accounts be in arrears and FRANCHISEE seeks remedy (court decisions,
collection agencies, judgments, mediations, and etc.) the City shall receive from proceeds collected its
applicable fees and notified of any and all hearings and/or meetings for participation. Also, upon resumed
service, FRANCHISEE agrees to immediately notify the Department of Solid Waste. FRANCHISEE shall
furnish such notification(s) as are provided in Section 22-2, of the City Code.
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Section 4.13, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise
Agreement has been modified as follows:
FRANCHISEE acknowledges that under this Agreement, price controls will be primarily extracted .through
competition amongst the Franchise companies for existing and future accounts. FRANCHISEE further
acknowledges that any increase in pricing by the FRANCHISEE could result in the customer seeking better
pricing from another FRANCHISEE.
increase of pricing to the customer. The FRANCHISEE may, however, increase service charges as a result of
customer contracts with another Franchisee, the Director of the—DepaFtment of Solid Waste may request the
not respond to the request, the City shall have the right to remove the dontainor and assess charges for mon
has equipment -and -dais efiaf sects t9-the-Franohisee.4lso, i. If the City identifies an Illegal container placed
and operating within the City limits by a non -licensed Commercial Hauler who is providing Commercial Solid
Waste Service without a Franchise from the City, the City will confiscate said container and assess charges for
man-hours, equipment, disposal and administrative costs and fines.
Section 4.15, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise
Agreement has been modified as follows:
At least annually (October 1) and as determined but—rot-fre ently haPzer-lyr-as—teter-mi„ed by the
Director of the Department of Solid Waste, each FRANCHISEE shaft supply the following information on a
diskette, compact disc, or other acceptable format and in the manner prescribed by the Director of the
Department of Solid Waste:
(1) A listing, as of the reporting date, of the names and addresses of customers, and the
addresses of each location served.
(2) The number and capacity of each dumpster and compactor per account.
(3) The list of accounts within the City of Miami for which hand collection of bags/cans is provided.
(4) An accounts receivable aging report for each City of Miami customer.
(5) A listing of City of Miami accounts that were charged off as bad debts.
Section 5.1, under Article V, FRANCHISE FEES, of the Commercial Solid Waste Franchise Agreement has
been modified as follows:
FRANCHISEE agrees to pay all applicable fees as contained and defined in Chapter 22 of the City Code,
ARTICLE II -DEFINITIONS of the Franchise Agreement and the Franchise Agreement in its entirety, within
specified time frames, as may be amended or adjusted from time to time by the enactment of City Code
amendments as referenced in "Franchise Fees" in Article II of this Agreement.
Section 5.2, under Article V, FRANCHISE FEES, of the Commercial Solid Waste Franchise Agreement has
been modified as follows:
FRANCHISE FEE: FRANCHISEE agrees to remit monthly to the CITY, twenty four percent (24%) of its Gross
Receipts, generated from accounts within the City limits, or $500.00, whichever is greater. Accompanying
the remittance, FRANCHISEE must provide the CITY with a list of the customers' names, addresses and total
amount collected. FRANCHISEE agrees to maintain a second list which reflects an aging schedule of
individual account charges which must be retained for a period of 60 months from the end of the Agreement
and made available at all times to CITY auditors. Twenty-four percent (24%) of the total amount collected
should equal the remittance amount paid to the City. The remittance of the previous month's collection should
be received by the CITY on or before the last day of each month. Failure to remit by the last day of the
following month will cause the FRANCHISEE a one and one half percent (1.5%) penalty per month on the
balance due. if payment is past due in excess of 60 days, the Department of Solid Waste will initiate its
procedure to revoke the FRANCHISE and attach the Payment and Performance Bond for all monies due and
owing the City, including costs. It should be noted, the twenty-four percent (24%) remitted monthly to the City,
should be calculated on all monthly gross receipts, excluding receipts derived from biomedical, biological, and
hazardous removal, as defined in the Agreement collected from the customers, exclusive of taxes and the
franchise fees. The gross percentage fee under this section does not apply to franchises engaged solely in
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biomedical, biological, and riazardous removal services. The City may , irom time to time, adjust this fee by
amending 22-56 of the City Code. FRANCHISEE acknowledges it shall be obliged to pay such fee as
adjusted or amended as of the effective date of such legislation and will promptly execute an
addendum or amendment affirming the foregoing.
Section 5.8, under Article V, FRANCHISE FEES, of the Commercial Solid Waste Franchise Agreement has
been modified as follows:
Safety Inspection Fee: Franchisee FRANCHISEE agrees to pay the City an annual $500.00 per vehicle
inspection fee. This is a regulatory fee as referenced in Section 166.221, Florida Statutes. This fee is for the
municipal inspection of the vehicles being used by 4r�,aneh-isee FRANCHISEE within the City. The inspection
of each vehicle will occur not less than on an annual basis. These are vehicles that are used by cr- n iSee
FRANCHISEE to operate within the City boundaries. The vehicles will include, but are not limited to, roll -offs,
grapple trucks, front and rear end loaders, vactor trucks, dump trucks, trailers, and any other vehicles used for
business, collection and disposal of any debris by the Franchisee FRANCHISEE. Franchisee FRANCHISEES
that are caught operating within the City limits without a vehicle inspection decal, will be subject to the violation
schedule as specified in Section 4.11.2.
Section 7.2, under Article VII, INSURANCE AND BONDS, of the Commercial Solid Waste Franchise Agreement
has been modified as follows:
FRANCHISEE agrees to maintain, for the term of this AGREEMENT, a Performance Bond, executed by a
surety company duly authorized to do business in the State of Florida, which shall be counter -signed by an
agent for the company, resident in the State of Florida. The amount of the bond shall be equal to the
FRANCHISEE'S previous 12 month franchise fees paid to the CITY (including the annual franchise fee,
monthly 24% franchise fee, annual per account fee, and any other franchise fees paid to the City) or a
minimum of $35,000 $25,000, whichever is greater, as security for the faithful performance of the Franchise
AGREEMENT. The surety shall have a rating classification of "A-" and a financial category of Class V as
evaluated in the current Best's Key Rating Guide, Property Liability. In lieu of a Performance Bond, the
FRANCHISEE may submit an irrevocable letter of credit, cash, certified check, treasurer's or cashier's check
issued by a responsible bank or trust company payable to the CITY of Miami. The Performance Bond shall be
submitted to the Purchasing Department no later than ten (10) business days after approval of the Agreement
by the City Commission and prior to the execution of the Agreement.
Section 10.2, under Article X, RIGHT TO TERMINATE AND/OR TRANSFER AGREEMENT, of the Commercial
Solid Waste Franchise Agreement has been modified as follows:
If the Franchise se FRANCHISEE is in default and owes sums to the City, 14 days after notice of default has
been sent to FRANCHISEE, the City will have the option of transferring the rights under that FRANCHISEE'S
AGREEMENT to a third party. That right to transfer the rights under that FRANCHISEE'S AGREEMENT may
be exercised at any time after the termination of the FRANCHISEE and no intent to later transfer those rights
need be expressed in any notice or other communication with FRANCHISEE.
Section 11,2, under Article XI, NOTICES, of the Commercial Solid Waste Franchise Agreement has been
modified as follows:
Copy To:
City of Miami
Director, Department of Solid Waste Director's Office
1290 NW 20th Street
Miami, i 133142
Section 14.1, under Article XIV, COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS, of the Commercial
Solid Waste Franchise Agreement has been modified as follows:
FRANCHISEE understands that agreements between private entities and local governments are subject to
certain laws and regulations., including laws pertaining to Franchisee FRANCHISEE's operations and services,
public records, conflict of interest, record keeping, etc. FRANCHISEE agrees to comply with and observe all
applicable Federal, State, County and City laws, rules, regulations, Codes and Ordinances, as applicable to
FRANCHISEE and its operations and services, as they may be amended from time to time.
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Section 21.1, under Article XXI, ADDITIONAL QUALIFIED PROPOSERS, of the Commercial Solid Waste
Franchise Agreement has been modified as follows:
In addition, Qualified Proposer(s) agree that the City .has the right to add additional qualified proposers, (in the
event any of the Franchises are cancelled, terminated, or the Franchisees FRANCHISEES otherwise cease to
do business or provide adequate service within the City), who meet all requirements of applicable laws, codes,
rules and regulations and will execute City furnished Agreements, to provide collection and disposal services,
as determined necessary by the City, through the duration of the contract in order to insure availability and
expediency of services. Each proposer who seeks to be added to the Commercial Solid Waste Hauling
Services contract shall be evaluated, .consistent with the requirements of this RFQ, to determine qualifications.
HEREIN AFTER THE FOLLOWING ARE ANSWERS TO QUESTIONS SUBMITTED BY PROSPECTIVE
PROPOSERS:
Q1: On July 26, 2010 at 2 pm, Prospective Proposer has to submit Attachment A RFQ 222246 plus 5
copies. What else does a Prospective Proposer need to submit (fingerprints? What about the Request
for Qualifications submitted back in May, is that still good?)
Al: Prospective Proposer shall refer to Section 4.1, Submission Requirements, of the RFQ solicitation document,.
for a list of documents that should be submitted as part of the response to the RFQ.
On Monday, June 28, 2010, Proposers who submitted a response to RFQ 198160 for Commercial Solid Waste
Hauling Services were notified of the City Manager's decision to reject all responses received. Additionally,
Proposers were allowed to visit the City's Purchasing Department to pick up all response copies and original
fingerprint cards submitted under RFQ 198160. Original fingerprint cards submitted in response to RFQ
198160 may be resubmitted in response to RFQ 222246.
Q2: Prospective Proposer has a general hauler permit with Miami -Dade, Miami Beach and several other
municipalities within Miami -Dade County. As such Prospective Proposer is interested in being allowed
to offer Prospective Proposer's services to the City of Miami. Prospective Proposer has roll off
containers and primarily works for General Contractors hauling the construction and demolition debris
from specific job sites. Prospective Proposer does not Haul Solid Waste or household garbage.
Prospective Proposer's question to the City is: Is this the contract that Prospective Proposer needs to
be bidding on in order to be allowed to provide services within the City? If it is not, would the City be
able to direct Prospective Proposer as to how Prospective Proposer can provide services to private
General Contractors within the City.
A2: Yes. Prospective Proposer must submit a response to Request for Qualifications No. 222246 if Prospective
Proposer is interested in providing hauling of construction and demolition debris within the City of Miami
jurisdictional limits.
Should Prospective Proposer be deemed unqualified or does not respond to RFQ 222246, Prospective
Proposer will not be allowed to operate within the City of Miami jurisdictional limits. Additionally, Prospective
Proposer runs the risk of having their roll -off container confiscated from the job site by the City of Miami and
paying a large penalty to the City for the release of the roll -off container.
Q3: Page 3 [Page 4 of the revised Franchise Agreement, incorporated herein this Addendum] of the
Franchise Agreement, definition of "Gross Receipts" includes sources "related indirectly to waste
collection services". The "indirectly" portion is confusing as to its limitations. For example, in the
case of a building with a compactor and a chute (incorrectly referenced as "shoots" in the definitions)
and a built-in high-rise recycling/solid waste system that is an integral part of a building, which
components, aside from the obvious collection and disposal, would be subject to franchise fees? How
will the City effectively collect franchise fees from compactor manufacturers that are NOT commercial
haulers but still lease directly to building owners? The fact that these manufacturers are NOT
commercial haulers would seem to give them a competitive advantage over the licensed haulers that
are paying franchise fees and contributing in -kind services, which seems unfair.
A3: There are no limitations on monies collected indirectly from waste collection services, by the Commercial
Hauler/Franchisee. Therefore, each Franchisee must include all revenue that is received, directly or indirectly,
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and include this revenue wnen reporting monthly gross receipts to the City. Compactor manufacturers that
lease equipment directly to building owners are not subject to the City's Franchise Fees at this time.
Q4: If recycling is not included in gross receipts, what about compactors and equipment used solely for
recycling?
A4: Recycling revenue is included in the definition of gross receipts. If the Franchisee charges a customer for
compactors and/or equipment that are used solely for recycling, said charges will be subject to the City's
Franchise Fees.
QS: Please clarify intent of participation in "Neighborhood Cleanups", particularly in fight of the fact that
commercial franchisee's work typically includes primarily collection of containerized service.
A5: As defined in Section 2.2 of the Franchise Agreement, "Neighborhood Cleanups" are to provide 'periodic
intensive removal of litter, debris and other solid waste material from a designated area of the City, initiated or
approved by the City, its NET offices and/or recognized community based organizations or associations
including special event activities citywide."
All Franchisees will be required from time to time to participate in Neighborhood Cleanups. The Cleanups
might require the Franchisee to provide trash pickups in roll -offs, or the use of garbage containers, or recycling
containers/bins etc., including the final disposal.
Q6: Section 4.2 of the Franchise Agreement prohibits one time per week collection. Please clarify if there
are any exceptions to this, and also if the intent is a minimum of twice per week or more. (Otherwise, it
may be argued from the current language that every other week service or even monthly service is not
prohibited).
A6: Multifamily residential units and restaurants/cafes (basically any establishment that serves food) cannot have
one time per week service. While the number of pickups varies based on the number of units, the minimum
weekly pickup is twice per week. All other businesses will be monitored, by the City's Department of Code
Enforcement, for adequate container size and service minimums. .
Q7: Please provide a list with service address and service levels of all CITY buildings and properties as
referenced in section 4.7. Are these assigned based on proportion of NUMBER of accounts OR on
proportion of REVENUE as determined by franchise fees paid?
A7: The City of Miami Department of Solid Waste is currently updating the list with addresses of all "CITY buildings
and properties", pursuant to Section 4.7 of the Franchise Agreement. Said list will be provided to all Proposers
deemed qualified after the Franchise Agreement is fully executed by the City. In -kind service assignments will
be made proportionate to the Franchisee's percentage of total contracted commercial accounts within the City
limits. The City facilities can include buildings, parks, police and fire stations, etc.
Q8: Section 4.11.2 of the Franchise Agreement lists county codes and potential fines to PROPERTY
OWNERS. Is it correct to assume then that the city is not attempting to fine commercial haulers for
property owners that refuse to initiate recycling programs? This should be the case, given the fact that
commercial haulers do not have any municipal authority to enforce the county's ordinances.
A8: Section 4.11.2 has been revised as indicated in this Addendum. The City is not attempting to fine Franchisees
for property owners who refuse to initiate a recycling program. As required by Section 15 of the Miami -Dade
County Code, entitled Solid Waste Management", commercial and multi -family structures are required to
initiate a recycling program; the enforcement of this requirement extends to all municipalities. However,
should a Franchisee be unwilling and/or unable to provide recycling service to commercial or multi -family
establishments, this will constitute a default in the Franchisee's agreement in accordance with Section 9.1
which may lead to termination of the agreement in accordance with Section 10.1.
Q9: If a commercial hauler pays the $8,000 annual fee, is it still obligated to pay the $4,000 specialized fee
(sections 5.4 and 5.7)?
A9: Pursuant to Section 5.4 of the Commercial Solid Waste Franchise Agreement, the "ANNUAL FRANCHISE
FEE" of $8,000 is only applicable to a "FRANCHISEE that performs ONLY Commercial Solid Waste Services
and FRANCHISEE that performs BOTH Commercial Solid Waste Services AND Specialized Waste Handling
Services [...] This fee does NOT apply to FRANCHISEE that performs ONLY Specialized Waste Handling
Services.
Page 9
(
Additionally, Section 5.7 states the following requirement regarding the -Annual Specialized Waste Handling
Fee" of $4,000: "This fee applies to a FRANCHISEE that ONLY performs Specialized Waste Handling
Services within the City limits."
The following table is for guidance purposes only, to further understand Section 5.4 and 5.7 of the Franchise
Agreement:
Type of Service
Annual Franchise Fee
$8,000
Annual Specialized Waste
Handling Fee: $4,000
Commercial Solid Waste
aif
Specialized Waste Handling
ti
Commercial Solid Waste and
Specialized Waste Handling
Of
It
Q10: The definition of "Gross Receipts" on page 3 [Page 4 of the revised Franchise Agreement,
incorporated herein this Addendum] of the Franchise Agreement now explicitly includes
"environmental waste services (vactor)" under the new agreement, effective October 1, 2010. Is this a
change, or was vactor already considered to be included in the definition, and therefore already
subject to franchise fees and other licensing requirements under the current agreement?
A10: Environmental waste services (vactor) was not clearly defined in the definition of Gross Receipts in the current
Franchise Agreement, for Commercial Waste Hauling Services, RFQ No. 03-04-107.
Q11: Are there any exceptions to the "Safety Inspection Fee" for vehicles that may only be used
infrequently in the City of Miami?
Al 1: No, there are no exceptions. The safety inspection is for all vehicles that are to be used within the City limits,
whether full-time, part-time or infrequently.
Q12: Will the city consider including the reduction in bond amounts for franchisees that make timely
payments and are in good standing? (This provision in the current agreement helps reduce needlessly
excessive expenditures on bonding for firms presenting little to no risk of default, and as such,
ultimately can benefit the city's customers).
Al2: No, the City will not consider including the reduction in bond amounts for Franchisees that make timely
payments and are in good standing. The Performance Bond Reduction Clause was removed from the new
Commercial Solid Waste Franchise Agreement attached to RFQ 222246.
Q13: Given that franchise fees are passed -through to customers (much like sales tax), Section 4.13 of the
Franchise Agreement should be revised to include Section 5.2 (along with section 5.6 as written) in the
reference to pricing. Commercial haulers do not "charge" franchise fees, they only "collect" them, and
therefore they should not be penalized when municipalities levy increases that are beyond the haulers'
control.
A13: Section 4.13 has been revised as indicated in this Addendum.
Q14: Proposer's response submitted under RFQ 198160 did not include the Commercial Solid Waste
Franchise Agreement. Is this something that the City requires five copies of as well? Why is the City
doing this again if it's only a draft? Should Prospective Proposer wait until it's not a draft?
A14: Prospective Proposer is not required to submit an executed copy of the Commercial Solid Waste Franchise
Agreement at the time of proposal submittal. The "draft" Franchise Agreement is being provided as a sample
of the type of agreement that will be executed between the City and the Qualified Proposers. Prospective
Proposer shall refer to Section 4.1, Submission Requirements, of the RFQ solicitation document, for a list of
documents that should be submitted as part of the response to the RFQ.
Page 10
The reason the City re -issued the Request for Qualifications for Commercial Solid Waste Hauling Services
was due to additional revisions made to the Commercial Solid Waste Franchise Agreement. Please refer to
Question 29 for a summary of the changes made.
Q15: CASH BOND
As a small hauler, running one (1) pick -up truck, the thirty five thousand dollar ($35,000) bond is
EXCESSIVE and prohibitive to small business owners. Can this be adjusted UP or DOWN to a
reasonable amount on a case by case basis?
A15: The performance bond requirements cannot be adjusted up or down to a reasonable amount on a case by
case basis. Every Franchisee (large or small) must comply with the performance bond requirements stated in
Section 2.16, Performance Bond Requirements, of the RFQ solicitation and Section 7.2 of the Franchise
Agreement as amended through this Addendum.
Q16: COMMERCIAL DRIVER'S LICENSE
As a junk removal company, that has one (1) pick-up truck operating with a Gross Vehicle Weight
(GVW) under the limits for Commercial Drivers License, can this requirement be waived?
A16: This requirement cannot be waived.
Q17: FRANCHISE FEES
As a small hauler, the 22% of GROSS RECEIPTS or $500.00, is an unfair burden on a business that
runs one (1) pickup truck. Can it be limited to 22% of GROSS RECEIPTS?
A17: Pursuant to Section 5.2 of the Commercial. Solid Waste Franchise Agreement, Prospective Proposer shall note
that the Franchise Fee is now "twenty four percent (24%) of its Gross Receipts, generated from accounts
within City limits, or $500.00, whichever is greater." Therefore, the monthly remittance of 24% of gross receipts
or a monthly remittance of $500, whichever is greater, cannot be changed.
Q18: FRANCHISE ANNUAL FEE
The Franchise Annual Fee should increase each year on the same percentage increase for Commercial
Solid Waste as Special Waste Handlers Services, not on a dollar figure each year. The Commercial
Solid Waste Services lst year fee is $7,500 and 2nd year is $7,750 a increase of 3.33%. The Special
Waste Handlers Services 1st year fee is $3,500 and 2nd year is $3,750 a increase of 7.14%
A18: Section 5.4 will not be modified. Pursuant to Section 5.4 of the Commercial Solid Waste Franchise Agreement,
the new Annual Franchise Fee for Franchisees who provides Commercial Solid Waste Services or both
Commercial Solid Waste Services AND Specialized Waste Handling Services is $8,000, which shall increase
annually by $500.00. Also, pursuant to Section 5.7 of the Franchise Agreement, Franchisees who provide only
Specialized Waste Handling Services, shall pay $4,000 annually, which shall increase annually by $500.00
This increase not based on a percentage basis, but on a set fee of $500.
Q19: SPECIAL WASTE HANDLERS SERVICES
Prospective Proposer uses one (1) pickup truck and multiple dump trailers to collect junk from
business on a one time basis. All of our vehicles have State of Florida license plates and are parked in
public parking spaces or private property. Since the junk is being removed by a Iicensed vehicle
rather than a container would the FRANCHISE apply to my business model?
A19: Every aspect of the Franchise Agreement would apply to your business model directly. Also, the use of
Prospective Proposers pick-up truck(s) and dump trailers, would be subject to all the rules and regulations as
stated in the Franchise Agreement.
Q20: EXCLUSIONS - GENERAL HAULER PERMIT
Does a DUMP TRUCK collecting material from a demolition site require the FRANCHISE? Does the U-
HAUL truck getting loaded with trash from a move in or out of a new business require a FRANCHISE?
What about a small contractor loading his construction debris from a job in the City limits? How is a
business that does $500 to $1000 a month with a licensed vehicle within City of Miami limits justify the
expense of $3,500 annual fee lst year and $6,000 in monthly fees? Can the city prepare a license
similar to Miami Dade County's General Hauler that is $500 per year plus a per vehicle fee and a
Franchise Fee on revenues from material collected with Miami Dade County limits?
A20: At this time, the City cannot prepare any other type of license other than the new Franchise Agreement. All
the examples of companies hauling debris, would be subject to the City's Franchise Fees. If a company is
Page 11
found operating in the City without being a Licensed City Franchisee, company would be subject to fines,
penalties and costs related to confiscation of container(s). A small hauler interested in operating as a City
Franchisee, must weigh the costs involved in becoming a Franchisee against the revenue income, to ensure a
sound business decision is accomplished..
Q21: Prospective Proposer is requesting that the City of Miami provide a new pre -response meeting for the
waste haulers regarding the new RFQ.
A21: The City of Miami is unable to accommodate at this time a pre -proposal conference for RFQ 222246 since the
current Franchise Agreement for Commercial Waste Hauling Services (RFQ No. 03-04-107) expires
September 301h, 2010. Pursuant to Section 2.2 of RFQ 222246, Prospective Proposers were allowed to
submit any questions or clarifications via email or fax to the attention of Yusbel Gonzalez by Tuesday, July 13,
2010 at 4:00 PM.
Q22: Section 5.8 of the Franchise Agreement adds a redundant fee for the haulers to absorb. The legally
required U.S. Department of Transportation inspections and frequent random road inspections ensure
our vehicles are mechanically fit to the current Federal standards.
A22: As stated in Section 5.8, Safety Inspection Fee, of the Commercial Solid Waste Franchise Agreement, the
"Safety Inspection Fee" is a "regulatory fee as referenced in Section 166.221, Florida Statutes. This fee is for
the municipal inspection of the vehicles being used by FRANCHISEE within the City." Therefore, the City will
be performing its' own Safety Inspection for vehicles that operate within the City limits. The City does not feel
this Safety inspection Fee adds a redundant fee to those inspections performed by the U.S. Department of
Transportation.
Q23: Regarding Section 5.8, Safety Inspection Fee, of the new Franchise Agreement: The proposed
$500 charge per vehicle for City inspections is not authorized by Federal Law under Section 49
CFR 396 et seq. The US Department of Transportation - Federal Motor Carrier Safety Administration is
the only agency authorized to certify the safety of the vehicles involved. The City inspectors are
limited to verifying that the vehicles have a copy of the annual vehicle inspection as required by 49
CFR 396. As such the proposed $ 500 is not customary or reasonable and not authorized by Section
166.221 Florida Statues (2010) because as it pertains to this charge it is unreasonable, and it has been
preempted by Federal Law.
A23: The City is not preempted by federal law Section 49 CFR 396, et seq, from performing their own safety
inspections. Section 49 CFR 396.234 expressly states that:
(a) A motor carrier or an intermodal equipment provider may meet the requirements of § 396.17
through a State or other jurisdiction's roadside inspection program. The inspection must have been
performed during the preceding 12 months. In using the roadside inspection, the motor carrier or
intermodal equipment provider would need to retain a copy of an annual inspection report showing
that the inspection was performed in accordance with the minimum periodic inspection standards set
forth in appendix G to this subchapter. If the motor carrier operating the commercial vehicle is not the
party directly responsible for its maintenance, the motor carrier must deliver the roadside inspection
report to the responsible party in a timely manner. Before accepting such an inspection report, the
motor carrier or intermodal equipment provider must ensure that the report complies with the
requirements of § 396.21(a).
(b)(1) If a commercial motor vehicle is subject to a mandatory State inspection program which is
determined by the Administrator to be as effective as § 396.17, the motor carrier or intermodal
equipment provider must meet the requirement of § 396.17 through that State's inspection program.
Commercial motor vehicle inspections may be conducted by State personnel, at State authorized
commercial facilities, or by the motor carrier or intermodal equipment provider itself under the auspices
of a State authorized self -inspection program.
(2) Should the Federal Motor Carrier Safety Administration (FMCSA) determine that a State inspection
program, in whole or in part, is not as effective as 4 396,17, the motor carrier or intermodal equipment provider
must ensure that the periodic inspection required by § 396.17 is performed on all commercial motor vehicles
under its control in a manner specified in § 396.17.
Page 12
f f
The statute makes it clear that a motor carrier is entitled to meet the requirements of the state law when
performing their roadside inspection program; it does not need to defer to the federal law, provided that it is as
effective as the federal inspection program. It is important to note that the burden should be placed on the
recyclable material collector to be in compliance with the state and county motor carrier inspection
requirements.
Additionally, There is no a violation of the commerce class by granting an exclusive franchise agreement to
garbage or recyclable material collections. in Southern Waste Systems, LLC v. The City of Coral Springs, Fla.,
the court very recently held that: "[fjor ninety years, it has been settled law that garbage collection and disposal
is a core function of local government in the United States. At their option, cities may provide garbage pick-up
to their citizens directly ... or they may rely on a closely regulated private market to provide those services..
. The Commerce Clause forbids only the promotion of local economic interests over out-of-state interests. It
does not forbid exclusive franchise agreements whereby a city selects one waste hauler to provide basic
waste collection services to its citizens, so long as the bidding process is open to all, and there is no
requirement that local interests be favored in the performance of the contract." 687 F. Supp. 2d 1342, 1353
(S.D. Fla. 2010). This case, attached hereto as Exhibit B, recognizes you can have a non-exclusive franchise
for recoverable materials which was part of a garbage collection franchise.
The City is entitled to charge reasonable fees for the handling and disposal of solid waste at their facilities. The
fees charged to municipalities at a solidwaste management facility specified by the county shall not be greater
than the fees charged to other users of the facility except as provided in Section 403.7049(5). "Solid waste
management fees collected on a countywide basis shall be used to fund solid waste management services
provided countywide". Section 403.709 (1), Florida Statutes.
Q24: Section 4.13 of the Franchise Agreement would require the Franchisee to absorb the 2% Franchise Fee
increase indicated in Section 5.2 since by accepting the Franchise Agreement, the Franchisee would
only be permitted to increase the Annual per account Permit Per Account Fee indicated in paragraph
5.6 and not the Franchise Fees Increase indicated in 5.2
A24: Section 4.13 of the Franchise Agreement has been revised as indicated in this Addendum.
Q25: The same requirements for public hearings adopting Changes to Chapter 22 of the City Code of
Ordinances ( Garbage and Other Solid Waste ) are applicable to any increases by way of annual
franchise fees, per container fees, equipment leasing fees and any other fee increases to those already
in existence by virtue of the current Franchise Agreement and Chapter 22 of the City Code of
Ordinances. it should also be pointed out for the record that as it pertains to fees on
leased equipment, the State of Florida is the only taxing authority entitled to collect sales and lease
taxes and not local counties or municipalities like the City of Miami.
A25: The City Code provides a minimum guideline and does not preclude the administration from supplementing
those guidelines with additional and reasonable operational standards and/or fees in conducting City
business. Also, the City is not collecting sales and lease taxes on leased equipment. Pursuant to Section 2.2
of the Franchise Agreement, the City is requesting that "all income derived from leasing and rental of real or
tangible personal property..." be included in the Franchisee's report of its' Gross Receipts.
Q26: Regarding any RFQ provisions increasing fees and other charges on roll -off equipment and permit
fees: Any such additional charges or fees not consistent with the existing Franchise Agreement must
first by approved by the City Commission and the Mayor. Until these approvals are given, as explained
in Paragraph 2 [Question 25] above, the subject new RFQ 222246 is void as contrary to the City's Code
or Ordinances, Charter, and State and Federal Law.
A26: The City Code provides a minimum guideline and does not preclude the administration from supplementing
those guidelines with additional and reasonable operational standards and/or fees in conducting City
business.
Q27: In the absence of a new pre -response haulers conference regarding the new RFQ, then the City staff,
may not represent to the City Commission that the new RFQ changes have been the subject of
negotiations with affected or interested haulers.
Page 13
A27: Prospective Proposers shall note that "negotiations" do not take place in a Request for Qualifications process.
Additionally, pursuant to Section 18-86(C)(4) of the City's Code, a pre -proposal conference is optional and is
simply hosted to "to explain the requirements of the proposed Procurement [...]".
Q28: RFQ 222246 must be cancelled until such a time as the Staff obtains the necessary authorization from
the City Commission and the Mayor pursuant to a public hearing on a Resolution adopting or denying
the staff's RFQ recommendations. In the Interim the current Franchise Agreements having been duly
approved by the City Commission and the Mayor and codified in Chapter 22 of the City Code of
Ordinances remain in effect.
Any extension of current Franchise Agreements would likewise require approval by the City
Commission and the Mayor following a public hearing.
A28: RFQ 222246 does not need to be cancelled. Requirements in Request for Qualifications Number 222246 and
the Commercial Solid Waste Franchise Agreement are in accordance with Chapter 22, Garbage and Other
Solid Waste, and Chapter 18, Article III, City of Miami Procurement Ordinance, of the City Code.
An extension of the current Commercial Waste Hauling Services Franchise Agreement RFQ# 03-04-107 does
not require approval by the City of Miami Commission and Mayor. In accordance with Section 1.8, Award of
Franchise Agreement(s), the following is stated:
"The City reserves the right to extend the Agreement for up to one hundred twenty (120) calendar
days beyond the stated Agreement term in order to provide the City with continual service while a new
solicitation is evaluated and/or awarded. If the right is exercised, the City shall notify the Qualified
Proposer(s) of its intent to extend the Agreement at the same price, terms and conditions for a specific
number of days. Additional extensions over the first one hundred twenty (120) day extension may
occur, if the City and the Qualified Proposer(s) are in mutual agreement of such extensions:"
Q29: Why is the Franchise Agreement, attached to RFQ 222246, so different from the Franchise Agreement
attached to the previous RFQ 198160 issued April 14, 2010?
A29: The Franchise Agreement issued under RFQ 198160 failed to contain the latest fee amounts, as authorized in
Section 22-50 and 22-56 of the City's Code of Ordinances. Additionally, an annual Safety Inspection Fee of
$500 per vehicle was incorporated into the new Franchise Agreement. For reference purposes only,
Prospective Proposers may refer to the table shown below for a summary of the changes between RFQ
198160 and RFQ 222246:
RFQ 198160
RFQ 222246
City Code of
Ordinances Section
Franchise Fee: 22 % of Gross Receipts
Franchise Fee: 24 % of Gross Receipts
Section 22-56(b)
Annual Franchise Fee: $7,500,
increased annually by $250
Annual Franchise Fee: $8,000, increased
annually by $500
Section 22-50(b)
Permit Per Account Fee: $50.00,
Franchisee allowed to pass on fee not to
exceed $24 to customer
Permit Per Account Fee: $75.00, Franchisee
allowed to pass on fee not to exceed $38 to
customer
Section 22-50(a)
Annual Specialized Waste Handling Fee:
$3,500, increased annually by $250
Annual Specialized Waste Handling Fee:
$4,000, increased annually by $500
Section 22-50(c)
Q30: The definition of Gross Receipts, in page 3 of the Franchise Agreement, should not include recycling
or any recyclable materials. State law, Florida Statute 403.7046(3)(a-d), prohibit local governments
from charging fees on these items. To comply with state law, these provisions must be removed from
the Franchise Agreement.
A30: The City of Miami is allowed to charge franchise fees for picking up recyclable materials. Section 403.7046,
Florida Statutes, is a statute that is not specially about recyclable materials but recoverable materials. The
pertinent part of the statute is section (d) states:
Page 14
"In addition to any other authority provided by law, a local government is hereby expressly authorized
to prohibit a person or entity not certified under this section from doing business within the jurisdiction
of the local government; to enter into a nonexclusive franchise or to otherwise provide for the
collection, transportation, and processing of recovered materials at commercial establishments,
provided that a local government may not require a certified recovered materials dealer to enter into
such franchise agreement in order to enter into a contract with any commercial establishment located
within the local government's jurisdiction to purchase, collect, transport, process, or receive source -
separated recovered materials; and to enter into an exclusive franchise or to otherwise provide for the
exclusive collection, transportation, and processing of recovered materials at single-family or
multifamily residential properties."
From the plain reading of the statute, the City of Miami is expressly authorized to 1) enter into a nonexclusive
franchise with a certified recoverable material dealer to collect recoverable (garbage or recyclable) materials
from any commercial establishment and 2) may enter in an exclusive franchise agreement to collect
recoverable (garbage or recyclable) materials at single-family or multifamily residential properties.
Q31: Section 4.5 of the Franchise Agreement: The containers are the responsibility of the customer once
they are placed on their premises, the company should only be required to make a reasonable effort to
secure the container. Depending on the size of the company and the time given to comply, as drafted,
it may be impossible.
A31: Section 4.5 of the Commercial Solid Waste Franchise Agreement has been modified to require the
FRANCHISEE to "make reasonable efforts" to secure its containers.
Q32: Section 4.13, of the Franchise Agreement: The City should not be in the position of advocating,
condoning or not respecting a contractual relationship between the company and the customer. As
drafted, there is no recognition that there may be a valid, binding, long term contract in place.
Additionally, if the City allows another hauler to service an account, the City should make it clear that
the customer must be current with the previous hauler and current on the franchise fees. Can this
section be redrafted to respect existing contractual agreements? Can this also be amended to only
allow customers to change at the end of a contract term and to only be able to do so if all fees have
been satisfied?
A32: Section 4.13 of the Franchise Agreement has been revised as indicated in this Addendum
Q33: Section 5.8, Safety Inspection Fee, of the Franchise Agreement: Florida statutes do not allow the City
to assess this fee, only the state. Please remove.
A33: That is incorrect. Florida Statute 166.221, Regulatory Fees, states: "A municipality may levy reasonable
business, professional, and occupational regulatory fees, commensurate with the cost of the regulatory
activity, including consumer protection, on such classes of businesses, professions, and occupations, the
regulation of which has not been preempted by the state or a county pursuant to a county charter."
The above cited Florida statute is a grant of home rule power to Cities to impose and assess regulatory fees.
Additionally, the City is not preempted by federal law Section 49 CFR 396, et seq, from performing their own
safety inspections. Section 49 CFR 396.234 expressly states that:
(a) A motor carrier or an intermodal equipment provider may meet the requirements of § 396.17
through a State or other jurisdiction's roadside inspection program. The inspection must have been
performed during the preceding 12 months. In using the roadside inspection, the motor carrier or
intermodal equipment provider would need to retain a copy of an annual inspection report showing
that the inspection was performed in accordance with the minimum periodic inspection standards set
forth in appendix G to this subchapter. If the motor carrier operating the commercial vehicle is not the
party directly responsible for its maintenance, the motor carrier must deliver the roadside inspection
report to the responsible party in a timely manner. Before accepting such an inspection report, the
motor carrier or intermodal equipment provider must ensure that the report complies with the
requirements of § 396.21(a).
Page 15
( iE
(b)(1) If a commercial motor vehicle is subject to a mandatory State inspection program which is
determined by the Administrator to be as effective as 4 396.17, the motor carrier or intermodal
equipment provider must meet the requirement of § 396.17 through that Staters inspection program.
Commercial motor vehicle inspections may be conducted by State personnel, at State authorized
commercial facilities, or by the motor carrier or intermodal equipment provider itself under the auspices
of a State authorized self -inspection program.
(2) Should the Federal Motor Carrier Safety Administration (FMCSA) determine that a State inspection
program, in whole or in part, is not as effective as 4 396.17, the motor carrier or intermodal equipment provider
must ensure that the periodic inspection required by § 396.17 is performed on all commercial motor vehicles
under its control in a manner specified in 4 396.17.
The statute makes it clear that a motor carrier is entitled to meet the requirements of the state law when
performing their roadside inspection program; it does not need to defer to the federal law, provided that it is as
effective as the federal inspection program. It is important to note that the burden should be placed on the
recyclable material collector to be in compliance with the state and county motor carrier inspection
requirements.
Q34: Section 7.2 of the Franchise Agreement: Prospective Proposer recommends to the City that it raise the
minimum bond to $500,000, much like other fixed fees in the contract, so that it is not floating. There
is an operational burden to the constant adjustment in the bond, not to mention the expense of
securing new bonds. Additionally, please redraft this section to make sure that the company does not
have to provide the City two bonds, one for the existing contract and one for the new contract. There
should not be overlapping bonds.
A34: Section 7.2 of the Franchise Agreement has been modified as indicated in this Addendum and copied below:
"The amount of the bond shall be equal to the FRANCHISEE'S previous 12 month franchise fees paid
to the CITY (including the annual franchise fee, monthly 24% franchise fee, annual per account fee,
and any other franchise fees paid to the City) or a minimum of $25,000 35,000, whichever is greater,
as security for the faithful performance of the Franchise AGREEMENT"
Additionally, Prospective Proposers shall note the clarification made in Section 2.16, Performance Bond
Requirements of the RFQ solicitation document, with respect to the submission of two performance bonds:
"Once the new Franchise Agreement is fully executed, the performance bonds submitted under the
Commercial Waste Hauling Services Franchise Agreement # 03-04-107 will be returned to the
respective franchisees."
Q35: On page 5 of 34 of the RFQ reads:
Unit of Measure
Unit Price: $ Number Of Units : Total : $
Questions: 1. Are you requesting a price per yard for hauling services from the hauler?
2. If you are requesting a per yard rate how many yards should we be quoting on?
3. Would you provide more details on this rate request.
A35: Line 1, Commercial Solid Waste Hauling Services, is not applicable to this RFQ. Prospective Proposers are
not required to enter a "Unit Price" and "Total" in this line.
ALL OTHER TERMS AND CONDITIONS OF THE IFB REMAIN THE SAME.
Sint',
GM/L Wyg
Cc: Bid File
Lar
Ch - Fine al Officer
Page 16
EXHIBIT A
Revised Commercial Solid Waste Franchise Agreement
Page 17
CITY OF MIAMI
NON-EXCLUSIVE
COMMERCIAL SOLID WASTE
FRANCHISE AGREEMENT
BETWEEN THE CITY OF MIAMI
AND
THIS CITY OF MIAMI NON-EXCLUSIVE COMMERCIAL SOLID WASTE
FRANCHISE AGREEMENT ("AGREEMENT"), made and entered into this day of
, 2010 by and between the City of Miami, Florida, a municipal corporation organized
and existing under the laws of the State of Florida, (hereinafter referred to as "CITY") and
, Inc. a corporation,
qualified and authorized to do business in the State of Florida, (hereinafter referred to as
"FRANCHISEE").
WITNESSETH:
WHEREAS, on September 28, 1999, Ordinance No. 11837 was passed by the Miami
City Commission which amended Chapter 22, entitled Garbage and Other Solid Waste, of the
City Code to allow regulatory permits for providing non-exclusive Commercial Solid Waste
Services with Commercial Franchises to qualified firms; and
WHEREAS, the City Manager has determined. that FRANCHISEE is qualified to serve
in the aforesaid capacity in that it has met the specifications set forth in Request for
Qualifications No. 222246 and applicable sections of the Code and Ordinances of the CITY;
and
WHEREAS, FRANCHISEE is desirous of obtaining a non-exclusive Franchise from the
CITY to provide Commercial Solid Waste Collection Services within the CITY as set forth
herein; and
NOW THEREFORE, in consideration of the mutual terms, conditions, promises and
covenants herein set forth and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, CITY and FRANCHISEE hereby agree to enter into this
AGREEMENT for furnishing Commercial Solid Waste Collection Services within the CITY, as
follows:
ARTICLE I
GENERAL INFORMATION
1
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
1.1 Each "WHEREAS" clause set forth above is true and correct and herein incorporated by
this reference.
1.2 The ATTESTATION OF QUALIFICATIONS for Commercial Waste Hauling
Services, submitted in response to RFQ NO. 222246 by FRANCHISEE is herein
incorporated by this reference.
ARTICLE II
DEFINITIONS
2.1 All Definitions set forth in the City of Miami City Code ("City Code"), Chapter 22,
Section 22-1, entitled Definitions, as amended, entitled Garbage and Other Solid Waste
and Chapter 22 in its entirety, are hereby incorporated by this reference.
2.2 As used in this AGREEMENT, the following words and terms shall have the following
s, unless �'t clearly othe ' equires:
Agreeme
CITY sha
RANCHI° REEME as it may her-'`fter be
shall in
wring the
Annual nchi Fee le 11 me
FRANCH EE w opera vithin
Sectio 0(b).he City de.
pecializ 3 Waste ndling Fee shall
RANC , ° E who ra ithin the C
garbage. See Section 22-50(c) of the City Code.
, as the bound of the
ged by the Ci ' o each
sects garbage and h. See
-arty fee charged .s e City
d collects trash ` luding
Biomedical Waste shall mean any solid or liquid waste which may present a threat of
infection to humans, including nonliquid tissue, body parts, blood, blood products, and
body fluids from humans and other primates; laboratory and veterinary wastes which
contain human disease -causing agents; and discarded sharps. The following are also
included:
(a) Used, absorbent materials saturated with blood, blood products, body fluids, or
excretions or secretions contaminated with visible blood; and absorbent materials
saturated with blood or blood products that have dried.
(b) Non -absorbent, disposable devices that have been contaminated with blood, body
fluids or, secretions or excretions visibly contaminated with blood, but have not been
treated by an approved method,
Biological Waste shall mean any solid waste that causes or has the capability of causing
disease or infection and includes, but is not limited to, biomedical waste, diseased or dead
animals, and other wastes capable of transmitting pathogens to humans or animals.
2
City of Miami, Florida Commercial Solid Waste Hauling Services RF,Q 222246
City Commission shall mean the local legislative body of the City of Miami. The City
Commission is the body that approves City Franchises. Any transfers, assignments,
amendments, conveyances, or delegations pursuant to this Agreement shall only be made
with the approval of the City Commission and in accordance with the terms in Article
XIII of this Agreement.
City Manager shall mean the duly appointed chief administrative officer of the City of
Miami. All actions of the City under this Agreement that do not specify City
Commission may be performed by the City Manager or the Director serving as the
Manager's designee.
Commercial Business shall mean and include all retail, professional, wholesale, and
industrial facilities and any other commercial enterprises, for profit or not for profit,
offering goods or services to the public. This definition incorporates by reference the
definition of "Commercial Establishment" set forth in § 15-1 of the Miami -Dade
Code.
within
establis.
off, and s
Director
l Ha shall
ity 1. is and
is incgding b
aiiz aste h
Franchi*, eesh
by each
a licens
vides ce
t limite
ing se
ctor of th
of Mia RANCHISEE th perates
vices to lti-Family and Cd ercial
ollowing, rbage, trash, recy g, roll-
arlarist of Sol
mean ' non Gro " eceipts remitted he City
C "‘EE. S ectio 2-56(b) o Cit ode, as amended. -I1 his fee
inende r adju1 by e City , fib ti o time, by ame ` mg this
of the Cit Code, a IZANCHISE ck ledges and agre at the
monthly percentage of gross receipts payable, as amended, or adjus ed, will
automatically apply to this Agreement and that the FRANCHISEE will promptly
execute an addendum or amendment recognizing the FRANCHISEE's obligation to
pay such adjusted or amended fee as of the effective date of such amendment.
Failure to pay such FRANCHISEE fee , as adjusted or amended , or failure to
execute the addendum or amendment to this Agreement FRANCHISEE shall be
deemed as in default of this Agreement pursuant to Article IX. Should a default
occur pursuant to Article IX, then this Agreement will be terminated pursuant to
Article X.
Gross Receipts shall mean all monies, whether paid by cash, check, debit or credit,
collected from customers resulting from all transactions and activities in the
FRANCHISEE'S regular course of business and trade including garbage, industrial, solid
waste, used cooking oil waste, portable toilets and sanitation, environmental charges and
fees, containerized waste, environmental waste services (vactor), equipment rental and
leasing, fuel surcharge, construction and demolition debris, roofing materials, trash, litter,
maintenance, compactors, refuse and/or rubbish collection removal and disposal services
rendered, hand bag collection, recycling, or from any other source related directly or
3
City of Miami, Florida
Commercial Solid Waste Hauling Services RFQ 222246
indirectly from waste collection services, including, without limitations, all income
derived from leasing and renting of real or tangible personal property, the use of dump
trucks, grappling trucks, roll -off trucks, trailers, roll -off s, boxed in, framed, fenced in, or
otherwise designated storage areas, etc., containers, bagsters, shoots, and any other
vehicles and equipment used for collection and disposal of any debris by the
FRANCHISEE, exclusive of taxes as provided by law, whether wholly or partially
collected within the CITY, less bad debts. Gross Receipts shall not include income
derived from the transportation, storage, treatment, collection, and removal of
biomedical, biological, or hazardous waste as herein defined,
Hazardous Waste shall mean any solid waste, or a combination of solid wastes, which,
because of quantity, concentration, or physical, chemical, or infectious characteristics,
may cause, or significantly contribute to, an increase in mortality or an increase in serious
irreversible or incapacitating reversible illness or may pose a substantial present or
potential hazard to human health or the environment when improperly transported,
red of, stored Y'.r otherwise merged.
Multi
or more
delinitio
establish
Resi
tiguo
co
dC
ater
fices
iecial
can and
and int
ferenee
55-1, Mia
1 mean :-odic
signate. a®;
zed:�
any buil
clusivel
finition
ounty
or structure eont
r residential purp,
Multi -family
e.
atter, debri
ted or approved b
anizations or a
g four
s. This
dential
d other
e City,
iations
i Per Accolitt Fee shalt n the charge , ess `y y the City begg each
October 1, for eacI account and ro"1-off that is acquired or maintained throughout the
Fiscal Year FRANCHISEE for the provision of commercial solid waste services.
Recycling shall mean any process by which solid waste, or materials which would
otherwise become solid waste, are collected, separated, or processed and reused or
retuned to use in the form of raw materials or products.
Recyclable Material shall mean those materials which are capable of being recycled and
which would otherwise be processed or disposed of as solid waste.
Safety Inspection Fee shall mean a regulatory fee as referenced in Section 166.221,
Florida Statutes, which is a yearly remittance paid to the City by the FRANCHISEE for
inspection of all vehicles that the commercial haulers will use to conduct business of
whatever source within the City boundaries.
Specialized Waste Handling Services shall mean the collection and disposal of solid
waste that requires special handling and management, including, but not limited to white
goods, waste tires, used oil, lead -acid batteries, construction and demolition debris, ash
4
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
residue and biomedical and biological waste. It should be noted that these are
FRANCHISEES that are in the roll -off collection business and do not collect garbage.
ARTICLE III
GRANTEE
3.1 The CITY grants unto the FRANCHISEE the continued non-exclusive right and
privilege, with related obligations, to provide commercial solid waste services in, under,
upon, over and across the present and future streets, alleys, bridges, easements, public
rights -of -way and other public places within the CITY boundaries, present and future, for
contracted multifamily, commercial business, governmental, religious, educational, profit
and non-profit agencies and/or property owners for solid waste collection and disposal
services.
3.2 The CITY further grants unto the FRANCHISEE the non-exclusive right and privilege,
lated obli o provide soh ste collect p q - 0
on, dem , enovation located wi
4.1
FRANC s
Solid Wa• and
waste ordi
materia
mate
ons n and
dead ` n.a1s, alihn
will not collecte
generator and agreed. to by the
TIONS F' °" CHISE
debris, roag m:
vehicles/boa M d per.
CHISEEesi
CHISEE.
of all Cercial
biological, and ardous
eries, auto parts, _,avating
vials, wood, pipe, peel, gas
, large equipmeng d parts
ecifically requir by the
4.2 FRANCHISEE shall make collection with as little disturbance as possible. Refuse
containers shall be thoroughly emptied and maintained in a clean manner. Any refuse
spilled by the FRANCHISEE shall be picked up immediately by the FRANCHISEE. The
removal of all refuse within 10 ft. of container will be the responsibility of the
FRANCHISEE. The FRANCHISEE will be held responsible for keeping the 10 ft.
radius surrounding containers clean and free of waste and debris. Service minimums for
multi -family dwellings shall be as follows: 1-8 Units — 2 CY @ 2 x per week; 9-16 Units
- 4 CY @ 2 x per week; 17-32 Units — 6 CY @ 3 x per week; 33-48 Units — 8 CY @ 3 x
per week, over 48 Units will require two 8 CY @ 5 x per week, with the City monitoring.
In case of insufficient service being noted, FRANCHISEE may be required to increase
service. Also, please be reminded that no customers are to be signed up for 1 x per week
garbage collection service.
4.3 FRANCHISEE agrees that all containers shall be identified with its name and telephone
number and be sufficient in quantity and size to contain material as indicated in the City
Code. All containers serviced by FRANCHISEE shall be maintained in a clean and
5
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
serviceable manner at all times. At no time shall any of FRANCHISEE'S containers be
left on the public right-of-way. The City, in its discretion, may require an adjustment in
the location, pick up schedule or the size of the container(s) if they become an unsightly
nuisance, cause a civil violation to occur, pose a threat to the surrounding environment,
threaten the health and/or safety of the CITY's population or become unsanitary and/or
inoperable. Except as otherwise provided, all vehicles used in the collection and/or
transportation of waste shall be equipped with a leak -proof body of metal type. If a
FRANCHISEE uses a specially designed, motorized local collection vehicle for
transporting solid waste over short distances from residential or commercial stops to
waiting trucks, the container portion of such vehicle shall be equipped with a cover,
adequate to prevent scattering of the load. If any pickup truck or open -bed truck is used
by a FRANCHISEE, the load shall be covered with an adequate cover to prevent
scattering of the load. All vehicles shall be operated in conformity with all ordinances of
the City. All vehicles shall be properly licensed, registered, and equipped in compliance
with the motor vehicles laws of the State of Florida.
ISEE s
quency
C
E
f a merg
ffort secur
and a1th. A
se the Y and
s and rou, can be r
sible for cr
ithin the
e respon
an mad
ariance
y is is
cont
Dona
ust ers of the e„ •mate me required befd
and main �d
ons and ur the provisions je City
r providi , notification of s to its
the C'a may t the
sched utes. As Opn as a
ayor RANCHISEE s 41.1 make
pto pr t hazards and/orOreats to
acticable er suckdisaster, the FRAAHISEE
ar
4.6 FRANCHISEE shall make its customers aware of Miami -Dade County's and/or City of
Miami's mandatory Commercial and Multi -family Residence recycling ordinance and
shall make services available for contract.
4.7 FRANCHISEE agrees to recycle, collect and dispose of the solid waste at designated
CITY buildings and properties, free of charge, pursuant to the City Code, as assigned by
the Director of the Department of Solid Waste. In -kind service assignments, including
recycling City facilities, will be made proportionate to FRANCHISEE'S percentage of
total contracted commercial accounts in the CITY.
4.8 FRANCHISEE agrees to collect and dispose of waste generated at assigned
Neighborhood Cleanups in proportion to the FRANCHISEE'S percentage of the total
franchise fees paid to the CITY. Such assignments are to be established by the Director
of the Department of Solid Waste.
4.9 FRANCHISEE shall require that its employees wear clean uniforms or shirts bearing the
FRANCHISEE'S name; that each driver shall, at all times, carry a valid Commercial
6
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
Driver's License, for the type of vehicle being operated; that the CITY may request the
removal of any employee of the FRANCHISEE from City service who is wanton,
negligent, or discourteous in the performance of his/her duties; and that no person shall
be denied employment by the FRANCHISEE for reasons of race, sex, age, creed,
national origin, or religion.
4.10 FRANCHISEE is required and hereby agrees by execution of this AGREEMENT to pay
all employees not less that the Federal minimum wage and to abide by other requirements
as established by the Congress of the United States in the Fair Labor Standards Act, as
amended and changed from time to time and to comply with all applicable laws relating
to the employment of employees and the provision of commercial solid waste services.
The FRANCHISEE shall have on hand at all times, in good working order, such
equipment as shall permit the FRANCHISEE, adequately and efficiently, to perform its
duties hereunder. FRANCHISEE shall have available at all times, reserve equipment
which can be put into service and operation within two hours of any breakdown.
4.1
tly adhere t
ity Cod
ce to
ours of
of this
by the
provision
h states hall.be unlawful.'or any
ercial 'Deity within 100 et of a
and 7: q .m., and to strictl : � �ilhere to
as speci&ed m the Notice of elation,
e Dep id Wast
, throug30), t amounts assessedor non -
be as
1 _ion-Cornnlnce 25(0
x
2nA ° n-Comp c 50
3M Ikon-Compl ance 1,000.00
Each Additional Non -Compliance: $1,000.00
FRANCHISEE agrees to comply with Section 15 of the Miami -Dade County Code,
entitled "Solid Waste Management", as amended. All Multi -Family and Commercial
establishments are required to initiate a recycling program. The recycling program shall
be serviced by a licensed City of Miami FRANCHISEE. Failure of FRANCHISEE to
provide a recycling program shall cause a default in this agreement pursuant to Article
IX; failure to cure said default may result in termination of said agreement pursuant to
Article X.
4.11.2 For any other failure to comply with the terms of this Agreement, the following amounts
will be due as liquidated damages and not as a penalty, for the violations of the
Agreement as specified in the Notice of Violation.
First Violation:
Second Violation:
7
$ 250.00
$ 500.00
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
Third Violation:
Each Additional Violation:
$1,000.00
$1,000.00
These amounts are established for the failures by the FRANCHISEE to comply with this
Agreement. It is not the intention of the City to assess the entire amounts for minor
failures to comply with the Agreement unless they are of a recurring or continuing nature.
The City reserves the right to assess twenty (20%) of the amounts set forth in this section
for minor failures to comply with the Agreement. The exact damages suffered by the
City cannot be known or ascertained and these amounts represent liquidated damages due
at the time of the violation.
4.12 FRANCHISEE is required, pursuant to Section 22-2 of the City Code to notify the
Department of Solid Waste, at least seven business days prior, of accounts for which it
will discontinue service and advise if said accounts are in arrears. Should any accounts
be in arrears and FRANCHISEE seeks remedy (court decisions, collection agencies,
d etc.) the Ci Bo4 ea
oaf any and + = s
.1
Also, i
of Soh
Section 2
Ants, media
fees
resum
Este.
of t
FRANCH E a
extracted
accounts.ff RAr
FRANC EE c
FRAN
ervice'41 A CHIS
C lifpfivE shall
xty Co®
hall receiv
barings ancl'
ees to
such no
iately notify the artment
ation(s) as are p .ded in
ols will barily
"existing future
increase in pric by the
tier pricing fro 'another
EE e City illegal ccaiiner ed and operatingpjthin. the
IISE
old res
s that and
n among
rther a
in th
tifie
t by a its -license . o rcial Hanle rho i providing Comme41 Solid
ervice wiut a Fr s ®m the City, Cit gill confiscate saigntainer
and assess charges for man-hours, equipment, disposal and adnvnistrative costs and fines.
4.14 ALL equipment utilized to collect and transport solid waste in the City must be
conspicuously marked on both sides of the automotive iniit with the name of the hauler,
vehicle number, tare weight, and cubic yard capacity. Identification information must
also be marked on all trailer and container units. All markings must be in letters and
numerals at least two inches in height.
4.15 At least annually (October 1) and as determined by the Director of the Department of
Solid Waste, each FRANCHISEE shall supply the following information on a diskette,
compact disc, or other acceptable format and in the manner prescribed by the Director of
the Department of Solid Waste:
A listing, as of the reporting date, of the names and addresses of
customers, and the addresses of each location served.
The number and capacity of each dumpster and compactor per account.
The list of accounts within the City of Miami for which hand collection of
bags/cans is provided.
8
City of Miami, Florida Commercial Solid Waste Hauling Services .RFQ 222246
(4) An accounts receivable aging report for each City of Miami customer.
(5) A listing of City of Miami accounts that were charged off as bad debts.
ARTICLE V
FRANCHISE FEES
5.1 FRANCHISEE agrees to pay all applicable fees as contained and defined in Chapter 22
of the City Code, ARTICLE ll-DEFINITIONS of the Franchise Agreement and the
Franchise Agreement in its entirety, within specified time frames, as may be amended or
adjusted from time to time by the enactment of City Code amendments as referenced in
"Franchise Fees" in Article II of this Agreement .
5.2 FRANCHISE FEE: FRANCHISEE agrees to remit monthly to the CITY, twenty four
percent (24%) of its Gross Receipts, generated from accounts within the City limits, or
$500.00, whichever is greater. Accompanying the remittance, FRANCHISEE must
the CIT st of the cu.- -,ers' name
F' 1 .: a,a ees to m. ai a secon a s .gn
sched inch ® l acco charges w ®¢ ust be ret fed for a period of onths
from th d of Agre = nt and A de vailable a ' 1 times to CITY auditors.
Twenty- per {24%) the tot °rnoJit collect hould equal the 'ttance
amount p to t1 ity. e remitt c of reviou onth's collection suld be
received e C e® efore the day o ach more to remit ! the last
day of the0110 � a � will cau he F CHIS E ` - d one ercent
(1.5%) pty p : oath ® the ba e paym is past due in ex s of 60
days, ep nt o olid _ t rate . = k procedure to red ke the
FRANC E ancttach the74_" aym, t and Perf - n ance Bond for all monieN ue and
City, dluding's should be d, t twenty-four perch (24%)
monthl the Cr—
�. ,� sli d be calc " d o11 monthly gross eceipts,
excluding receipts derived om biomedical, biological, and hazardous removal, as
defined in the Agreement collected from the customers, exclusive of taxes and the
franchise fees. The gross percentage fee under this section does not apply to franchises
engaged solely in biomedical, biological, and hazardous removal services. The City may
, from time to time, adjust this fee by amending § 22-56 of the City Code.
FRANCIISEE acknowledges it shall be obliged to pay such fee as adjusted or
amended as of the effective date of such legislation and wilt promptly execute an
addendum or amendment affirming the foregoing.
5.3 FRANCHISEE shall, on or before 90 days following the close of each fiscal year, deliver
to the Director of the Department of Solid Waste, a certified statement of its annual gross
receipts and charge -offs, generated from accounts within the City prepared by an
independent Certified Public Accountant (CPA) reflecting gross receipts/activity within
the City for the preceding fiscal year. The CPA statement shall render an unqualified
opinion relative to the accounting of all revenues, fees and charge -offs generated from
accounts and activity within the City limits
9
City oflMMiamt, Florida Commercial Solid Waste Hauling Services RFQ 222246
5.4 ANNUAL FRANCHISE FEE: FRANCHISEE agrees to remit to the CITY annually (due
October 1) the sum of $8,000.00 for the right to be a FRANCHISEE for Commercial
Solid Waste Services within the City; said fee shall increase annually by $500.00.
Failure to remit the required annual franchise fee by the due date will cause the
FRANCHISEE a one and one half percent (1.5%) penalty per month on the balance due.
FRANCHISEE that performs ONLY Commercial Solid Waste Services and
FRANCHISEE that performs BOTH Commercial Solid Waste Services AND Specialized
Waste Handling Services will be subject to this annual fee. This fee does NOT apply to
FRANCHISEE that performs ONLY Specialized Waste Handling Services.
5,5 FRANCHISEE agrees to remit the $8,000.00 annual franchise fee by October 1, 2010, as
noted in paragraph 5.4 above. FRANCHISEE further agrees on each anniversary
(October 1) throughout the term of the Franchise Agreement, to increase said fee by
$500.00. For example; commencing October 1, 2011, the annual fee due the City will be
$8,500.00, and so forth throughout the Agreement term.
5.6
ISEE a
amour seven
effectiv- 6..tober
October of e
lit to the C.
0) (due
w fiscal
al year
es and/c
utilized
or each n1
RAN
-off p'
of
account and ea
s and roll -offs boa„+
ntract for the pr
andling services,
of prove
ew roll -of
$75.00 for the n
remittance must
roll -off
d as of
lion of
eluding
g solid
ontainer
account
to the
by the =lae FRANCHISEES ay only
amo n of to ed d permit per ace `t fee to
ontracted ` - tomer. t ;e shall not be trerable.
ETfective October , 2010 the annual period will begin October 1st and end September
30t11. All late payments of this fee will cause the FRANCHISEE a one and one half
percent (1.5%) penalty per month on the balance due.
commercolid
each conger an
waste se
acquired
includin
Financ-:
ually a
1) for e
ose ace
om they
ed was
ISEE
ial ace
to re
ity•
following nth.
-eight ($3.8#0) of
rmit per acn
5.7 Annual Specialized Waste Handling Fee: FRANCHISEE agrees to remit to the City
annually (due October 1, 2010) the sum of $4,000.00 for the right to provide ONLY
Specialized Waste Handling Services within the City limits. It should be noted, if a
FRANCHISEE is providing ONLY Specialized Waste Handling Services within the City,
the annual franchise fee will increase by $500,00 per year. For example; commencing
October 1, 2011, the annual franchise fee for Specialized Waste Handling Services due
the City will be $4,500.00, and so forth throughout the Agreement term. All late
payments of this fee will cause the FRANCHISEE a one and one half percent (1.5%)
penalty per month on the balance due. This fee does not allow the FRANCHISEE to
perform Commercial Solid Waste (Garbage) Services within the City limits This fee
applies to a FRANCHISEE that ONLY performs Specialized Waste Handling Services
within the City limits.
10
City of Miami, Florida
Commercial Solid Waste Hauling Services RFQ 222246
5.8 Safety Inspection Fee: FRANCHISEE agrees to pay the City an annual $500.00 per
vehicle inspection fee. This is a regulatory fee as referenced in Section 166.221, Florida
Statutes. This fee is for the municipal inspection of the vehicles being used by
FRANCHISEE within the City. The inspection of each vehicle will occur not less than
on an annual basis. These are vehicles that are used by FRANCHISEE to operate within
the City boundaries. The vehicles will include, but are not limited to, roll -offs, grapple
trucks, front and rear end loaders, vactor trucks, dump trucks, trailers, and any other
vehicles used for business, collection and disposal of any debris by the FRANCHISEE.
FRANCHISEES that are caught operating within the City limits without a vehicle
inspection decal, will be subject to the violation schedule as specified in Section 4.11.2.
TY may, a
al pay
e audi
E'S
nspecti
ARTICLE VI
AUDIT AND INSPECTION RIGHTS
ble times, and f eriod of uRati
FRANCHI o CITY u` Mgr°
bks and r o'j: of F u ISEE which are
der thi `� , ent F CHISEE agrees t
s princip -isla f busine or a period of fiv
er this A. ' r E ANT.
ated to
aintain
5) years
as provided in § 1 01 and
Visa',
ro a �
Solicitations an Contractual p'°dVisrd ' City contracts s) `prove that the city may insp !! goods or
services at the facilities of the contractual party and perform tests to determine whether they conform to
solicitation requirements contained in invitation for bids. or requests for proposals or, after award, to the
terms and conditions of the contract. Such inspections and tests shall be performed in accordance with the
terms and conditions of the solicitation and contract.
(b) Procedures for tests and inspections.
(1) The chief procurement officer may specify general operational procedures governing the test and
inspection of all goods or services, sales or leases being performed under city contract by city departments,
offices and individual purchasing agents.
(2) The chief procurement officer shall Inspect or supervise the inspection of all deliveries of supplies,
materials, equipment, contractual services or performance under lease agreements to determine
conformance with the terms and conditions upon which the order or contract was based. Any purchasing
agent or department may be authorized by the chief procurement officer to inspect deliveries or contract
performance in the manner stipulated with the approval of the city manager.
(3) The chief procurement officer may prescribe chemical, physical and other performance tests for goods
or services, including samples submitted with bids or offers and samples of deliveries and performance to
determine their quality and conformance with the terms and conditions of the solicitation or contract. In the
performance of such tests or inspections, the chief procurement officer shall have the authority to make use
of the laboratory facilities of any department of the city or any outside laboratory or special expertise
available to evaluate service performance.
(c) Conduct of inspections. Whenever possible, inspections and tests shall be performed so as not to
unduly delay or inconvenience the contractual parties. Contractual parties shall make available at no
charge to the city all reasonable facilities and assistance, in order to facilitate the performance of
inspections or tests by city representative.
11
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
i
(Ord. No. 1227t, § 2, 8.22-02)
Sec. 18-102 - Audits.
(a) Solicitations and contractual provisions. City contracts shall provide that the city may inspect the
books and records of contractual parties to determine conformance with the solicitation requirements
contained in the invitation for bids or request for proposals or, after award, with the terms and conditions of
the contract.
(b) Procedures for audits.
(1) The chief procurement officer may specify the general procedures for inspection of books and records
and for the conduct of audits of ali goods or services, sales or leases under city contracts.
(2) An audit may be required when, in respect to an actual or prospective contractual party, there is:
a. A question as to the adequacy of accounting policies or cost systems;
b. A substantial change in the methods or levels of operations;
c. Previous unfavorable experience indicating doubtful reliability of estimating, accounting or purchasing
methods;
d. A lack of cost experience due to the procurement of a new supply or service; or
Other evidence that an audit is in the city's bbtkinterests as determined by the chi frncurement
I'
e.
incon
reasona
Ord. No. 1227
ill
actual
assistar
commission.
r possible, a
(. Contractual
or the conv
6 2 The CIT ® ay, b1e times
pe st, as
goo r sers requi
T c rm to term ereof, if
o the TY re0, Q.ab1m cilities
'i nce of a tests ants mi ections by
gpections shall t subject to and t ade in accor
hall be perfo
shall make
f the city re
allabie at no charge to
entatives performing
e city all
audit.
pett FRAN SEE' S
reasbly necessary, to ermine
ided FRANCHISEE er this
icab FRANCHISEE 1 make
endassistance to fa ate the
Y r esentatives. All is and
e, the provisions oTSections
18-95, 18-96 and 18-97, of the City Code, as same may be amended or supplemented,
from tirne to time. FRANCHISEE also agrees to allow City auditors, during regular
business hours and after reasonable notice, to audit, inspect and examine the
FRANCHISEE'S financial records (as they relate to City of Miami revenue) including all
fiscal books and records, sales tax returns, bank statements, general ledger (vouching
City of Miami revenue to the G/L), contract/agreement between FRANCHISEE and
customer and any other financial information deemed necessary, insofar as they relate to
City accounts, as well as, the FRANCHISEE'S entire customer base, in order to confirm
the FRANCHISEE'S compliance with the Franchise Agreement. FRANCHISEE further
agrees to pay a one and one half percent (1.5%) penalty per month on any monies due
and owing the CITY, as a direct result of an audit from whatever applicable revenue
stream during the Agreement term. In addition, if a City Audit reveals that
FRANCHISEE under reported gross receipts, and results in additional revenue due the
City in the amount of $20,000.00 (per Fiscal Year) or more, FRANCHISEE agrees to pay
for the cost of said Audit. Upon audit notification, FRANCHISEE agrees to deliver all
financial information and books and records to within the City limits, if said information
is maintained outside the City boundaries.
12
City ofMiami, Florida Commercial Solid Waste Hauling Services .RFQ 222246
6.3 FRANCHISEE agrees to allow CITY auditors the right to copy any financial related
source documents when deemed necessary, to substantiate an audit finding. Also, any
FRANCHISEE requesting credit or refund for Franchise Fees paid to the City in error,
will be required to pay for the auditing hours necessary to verify the claim that is
performed by our City auditors. As an alternative, FRANCHISEES may retain their own
outside CPA Firm to verify their claim. It is agreed that FRANCHISEES must pay for
the hours necessary to verify the work of the outside CPA Firm.
ARTICLE VII
INSURANCE AND BONDS
7.1 FRANCHISEE agrees to maintain, for the term of this AGREEMENT, a public liability
policy in the minimum amount of $1,000,000; automobile liability insurance policy
covering FRANCHISEE'S operations with a combine single limit of $1,000,000 per
ence for bo and property da,Mage liabili EA
includ , , ompensatio verage. .1 0c aYvtali
additio : sure& a'
7.2 FRANC :` ' E a yes tom tain, for c t:su , of this AGREEMENT, a Pe nuance
ri Bond, ex ted sur ty ompanyorized €io business in th tate of
Florida, ._ h sh 9 u er-signed; an a t for the, oesident ifi e State
of Florida he the bond 'l be e to th r SEE'S p ous 12
month tr se paid t e CIT.-' u e arm franchise fee, mokby 24%
franchises , ann per a t fe r, fran e fees paid to thefty) or a
minim 'f S2S,, whit is ter, as sect for c faithful perform -e of the
AGREENT. sur shall have atin . lassification of ' and a
catego 'f Class s valuated in ' urr Best's Key RatGuide,
Property Liability. In lieu o a Pe ormance Bond, the .FRANCHISEE may s . mit an
irrevocable letter of credit, cash, certified check, treasurer's or cashier's check issued by a
responsible bank or trust company payable to the. CITY of Miami. The Performance
Bond shall be submitted to the Purchasing Department no later than ten (10) business
days after approval of the Agreement by the City Commission and prior to the execution
of the Agreement.
ARTICLE VIII
TERM
8.1 The term of the Agreement shall be for a period of five (5) years with three (3) one (1)
year options to renew. The Agreement shall commence October 1, 2010, and shall
terminate on September 30, 2015, with the three (3) one (1) year option periods through
September 30, 2018. The AGREEMENT shall become effective upon execution by the
parties hereto.
13
City ofMiarni, Florida Commercial Solid Waste Hauling Services RFQ 222246
8.2 The option to renew the Agreement for the additional three (3) one (1) year periods will
be at the sole discretion of the City. Various criteria will be established prior to each
renewal period. During the review process for renewal, the established criteria will be
used in order to ascertain how well each FRANCHISEE performed since the inception of
the October 1, 2010, Agreement. It should be noted that any FRANCHISEE that is not
renewed for any of the option periods, will not be allowed to operate within the City
limits.
ARTICLE IX
DEFAULT
9.1 If FRANCHISEE fails to comply with any term or condition of this Agreement, or fails
to perform any of its obligations hereunder, then FRANCHISEE shall be in default.
e occurreil default here the CIT
to it by m s' ediately, u 4 'den noti C EL rm a' e
this A ekement. RAN ISEE and and a s that tenninati � of this
Agreem ®: undea ' 's sect ° W shall n r , e e FRANC '.ISEE from any i'ligation
accruing to : effecti . ate of t n . Shou RANCHISEE beable or
unwilling o ice t ', orm the 'Fel ice ithin the e provided or co . plated
herein, th m a e forego' ` F " • ISEE , le to thee'q TY for
all expend hit by ,CITY ' parati d ne �a this Agr Iuent, as
well as, a costs expensesincurr -, n the -procurement of th eivices,
includingnsegtiontial anc alcident
:1t statusnot curer
e Franchiswand trans
t
Agreement".
.rd party.
14
, the City has tl r'gilt to
City ofMfami, Florida
Commercial Solid Waste Hauling Services RFQ 222246
ARTICLE X
RIGHT TO TERMINATE AND/OR TRANSFER AGREEMENT
10.1 The CITY shall have the right to terminate this AGREEMENT, in its sole discretion, at
any time after the CITY gives written notice to the FRANCHISEE of a default of any of
the provisions in this Agreement and the FRANCHISEE fails to correct the default or
cease the conduct as set forth in the written notice, within fourteen (14) working days of
the receipt by the FRANCHISEE of said notice from the CITY.
10.2 If the FRANCHISEE is in default and owes sums to the City, 14 days after notice of
default has been sent to FRANCHISEE, the City will have the option of transferring the
rights under that FRANCHISEE'S AGREEMENT to a third party. That right to transfer
the rights under that FRANCHISEE'S AGREEMENT may be exercised at any time after
mination oCHISEE and Wintent to late Q edthe
in any r commune with F
10. . FRAN EE h ` e righ ° appeal t e ation of AGREEMENT ! e City
Manager ccor ' ce wi e same t t� Fpe as set fo e in Section 22-49 e City
Code. Sal, feque€ or ap�p - k rust be
10 All comps is re e CITY a11 be lved b g ^ CHISEE d thin 24
hours, a noti Jhe City CH1 of said complE . The
FRANCEEE a es to s < e all expe„�� us efforts to res; �e every
coanpla. The CHIC shy erform evreasonble act to provide`eve1 of
serve :` hieh w1 ire e complai
10.5 It is expressly agreed that in no event shall the CITY be liable or responsib e to the
FRANCHISEE or its customers for delay or temporary interruption in service because of
disputes between the parties or any cause over which the CITY has no control. In the
event of any condition which makes performance of contracts entered into under the
terms and conditions of this AGREEMENT impossible, FRANCHISEE agrees that the
CITY shall have the right to invite, notify, and qualify other Prospective Proposers of the
opportunity to provide collection and disposal services.
ARTICLE XI
NOTICES
Whenever either party desires to give notice unto the other, it must be given by written
notice, sent certified U.S. Mail, with return receipt requested, addressed to the party for
whom it is intended, at the place last specified and the place for giving of notice in
compliance with the provisions of this paragraph.
15
City of Mimi, Florida Commercial Solid Waste Hauling Services 22FQ 222246
11.2 For the present, the parties designate the following as the respective places for giving of
notice, to -wit:
CITY of MIAMI
do City Manager
3500 Pan American Drive
Miami, Florida, 33133
FRANCHISEE
Copy To:
City of Miami
Director, Department of Solid Waste Director's Office
1290 NW 20th Street
Miami, F1 33142
12 FRANC E s ind de arrnlwil the CITY and it ffficials,
and ag-: is (coll �vely rred to as de es") and each of fiem from
st all "s, cost a end Ales, fines, duges :` Maims, expensesiuding
s fees) o abilities { ll vely referre a as ryi:abilities") by reas - of any
m5ury to or death of any person or damage to or destruction or loss of any property
arising out of, resulting from, or in connection with (i) the performance or non-
performance of the services contemplated by this AGREEMENT which is or is alleged to
be directly or indirectly caused, in whole or in part, by any act, omission, default or
negligence (whether active or passive) of FRANCHISEE or its employees, agents or
subcontractors (collectively referred to as "FRANCHISEE"), regardless of whether it is,
or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by
any act, omission, default or negligence (whether active or passive) of the Indemnities, or
any of them or (ii) the failure of the FRANCHISEE to comply with any of the paragraphs
herein or the failure of the FRANCHISEE to conform to statutes, ordinances, or other
regulations or requirements of any governmental authority, Federal or State, in
connection with the performance of this Agreement. FRANCHISEE expressly agrees to
indemnify and hold harmless the Indemnities, or any of them, from and against all
liabilities which may be asserted by an employee or former employee of FRANCHISEE,
or any of its subcontractors, as provided above, for which the FRANCHISEE'S liability
to such employee or former employee would otherwise be limited to payments under
State Workers' Compensation or similar laws.
16
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
ARTICLE XIII
ASSIGNABILITY
13.1 There is no right to assign this Agreement. The City Commission may allow an
assignment if it is deemed in the best interests of the City of Miami ("CITY") to do so.
Under no circumstances may the City Commission consider assignment of a Franchise as
long as the FRANCHISEE has any outstanding balance to the CITY or is otherwise not
in complete compliance with the Agreement. If the FRANCHISEE is up to date with all
payments to the CITY and is otherwise fully in compliance with the Agreement, then a
FRANCHISEE may request consideration for assignment only as follows: by Certified
letter to the Director of the Department of Solid Waste with reports enclosed reflecting all
payments due to the CITY have been paid through the date of the letter. For the purposes
of this paragraph, "assignment" shall include any transfer of a majority of stock in a
FRANCHISEE or any significant change in ownership of the FRANCHISEE, its officers,
directors or personnel. The Director of the Department of Solid Waste must be notified
.sale of a m . stock in the F' ,:: HISEE an Ofc. ora,r s �w the
of the E, its offic ectors or p -
ive (S usiness ys after s ® •on. If a ': nment is grante'. h e new
EE w : assume obligati • s orth in th �` greement and i diately
all ins of Agreemene CIT proves assignor : of this
it be tioned the 4 :.posed ignee demonstrak" '° fiscal
abili rt onsibili Prior lconside on f proval b e City,
assi g xecute signor ;Assumeement whby they
eve ;: amdi ® of the p axAgree -nt and this Agrccr .t must
later tl
FRANC
comply
Agreeme
solvency,
the propo
comply v�
be appro
as to and 3rectne ° ttom
13, EME g. shall be
tatives, s essors, o
pon the p
here their heirs, exec
ARTICLE XIV
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS:
s, legal
14.1 FRANCHISEE understands that agreements between private entities and local
governments are subject to certain laws and regulations, including laws pertaining to
FRANCHISEE's operations and services, public records, conflict of interest, record
keeping, etc. FRANCHISEE agrees to comply with and observe all applicable Federal,
State, County and City laws, rules, regulations, Codes and Ordinances, as applicable to
FRANCHISEE and its operations and services, as they may be amended from time to
time.
ARTICLE XV
NONDISCRIMINATION
15.1 FRANCHISEE represents and warrants to the City that FRANCHISEE does not and will
not engage in discriminatory practices and that there shall be no discrimination in
17
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
connection with FRANCHISEE'S performance under this Agreement on account of race,
color, sex, religion, age, handicap, marital status or national origin. FRANCHISEE
further covenants that no otherwise qualified individual shall, solely by reason of his/her
race, color, sex, religion, age, handicap, marital status or national origin, be excluded
from participation in, be denied services, or be subject to discrimination under any
provision of this Agreement.
ARTICLE XVI
INDEPENDENT CONTRACTOR
16.1 FRANCHISEE is being engaged as an independent contractor, and not as an agent or
employee of the City. Accordingly, FRANCHISEE shall not attain, nor be entitled to,
any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any
rights generally afforded classified or unclassified employees. FRANCHISEE further
-Lands that ®.- �rkers' Compe ¢:bon benefits n Too l-,e
of avails e CHISEE, `: 0 . grecs to
r any loyee � gent of F v � . ,' SEE.
ent ®'a11 be ®verned = . tl�e lam ® f the deral Gover mnen� tate of
arnr D idinan. of the City of M' '. This
sha11 reted and .; he la bf the State of Flo
17the attics shall be in ��� = :any el = actions�� .ro°�dings betw��� Mi-Dade
aihty, Florida.
17.3 In order to expeditiously handle any claims, actions or proceedings between the parties
under this Agreement each party voluntarily and knowingly: (i) waives their right to
demand a jury trial; (ii) waives their right to file a permissive counterclaim; (iii) agrees to
bear their own attorney's fees.
ARTICLE XVIII
SEVERABILITY
18.1 Should any section of this AGREEMENT, or any part thereof, or any paragraph, sentence
or word be declared by a Court of competent jurisdiction to be invalid, such decision
shall not affect the validity of the remainder hereof
ARTICLE XIX
ENTIRE AGREEMENT
18
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
19.1 This instrument and its attachments constitute the sole and only AGREEMENT of the
parties relating to the subject matter hereof and correctly sets forth the rights, duties, and
obligations of each to the other as of its date. Any prior Agreements, promises,
negotiations, or representations not expressly set forth in this AGREEMENT are of no
force or effect.
19.2 It is further understood that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document
executed with the same formality and of equal dignity herewith.
19.3 Notwithstanding the aforementioned, the City reserves the right , from time to time, to
levy other reasonable business, professional, and occupational regulatory fees, pursuant
to § 166.221, Florida .Statutes . ,.
19.4 : F'ty of Mi
financ
ZCHISE
artment of Soli -Waste, may
ts, as reaso epsh_needed, to
s subject tirl ranchise eement.
ARTI
ARTICLE XXI
EMEN
er, Ci Aforney, City C, Risk
icon to evidence of roval.
ADDITIONAL QUALIFIED PROPOSERS
21.1 In addition, Qualified Proposer(s) agree that the City has the right to add additional
qualified proposers, (in the event any of the Franchises are cancelled, terminated, or the
FRANCHISEES otherwise cease to do business or provide adequate service within the
City), who meet all requirements of applicable laws, codes, rules and regulations and will
execute City furnished Agreements, to provide collection and disposal services, as
determined necessary by the City, through the duration of the contract in order to insure
availability and expediency of services. Each proposer who seeks to be added to the
Commercial Solid Waste Hauling Services contract shall be evaluated, consistent with
the requirements of this RFQ, to determine qualifications.
19
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by
their respective officials thereunto duly authorized, this the day and year above written.
ATTEST:
Priscilla A. Thompson, City Clerk
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru
City Attorney
"CITY"
CITY OF MIANII, a municipal
corporation
By:
Carlos A. Migoya, City Manager
APPROVED AS TO INSURANCE
REQUIREMENTS:
Gary Reshefsky
Interim Director
Risk Management
20
EXHIBIT B
Southern Waste Systems, LLC
v.
The City of Coral Springs, Fla.
Page 18
Top of Form
FOR EDUCATIONAL USE ONLY
'West Reporter Image (PDF)
687 F.Supp.2d 1342
Motions, Pleadings and Filings
Judges, Attorneys and Experts
United States District Court,
S.D. Florida.
SOUTHERN WASTE SYSTEMS, LLC, a Florida limited liability company; and Sun Recycling, LLC, a Florida limited liability
company, Plaintiffs,
v.
THE CITY OF CORAL SPRINGS, FLORIDA, a Florida Municipal Corporation; Waste Management, Inc. of Florida, a Florida
Corporation, and the Broward Solid Waste Disposal District, a Florida Dependent Special District, Defendants.
Case No. 06-61448-CIV.
Jan. 22, 2010.
Background: Companies engaged in business of collecting, hauling, and disposing of commercial construction and
demolition waste brought § 1983 action against city, city's exclusive commercial waste collection contractor, and county
solid waste disposal district, alleging that exclusive contract between the defendants violated the Commerce Clause, and
seeking damages, declaratory relief, and injunctive relief. Defendants moved for summary judgment, and plaintiffs
moved for partial summary judgment.
Holdings: The District Court, Elan S. Gold, J., held that:
(1) the exclusive contract did not violate the dormant Commerce Clause;
(2) district's requirement that commercial waste be delivered to and processed at certain designated facilities did not
violate the dormant Commerce Clause;
(3) plaintiffs had constitutional standing to challenge the contract, ordinance, and requirement; but
(4) plaintiffs lacked prudential standing to challenge the contract, ordinance, and requirement; and
(5) alleged discriminatory effect against interstate commerce under contract, ordinance, and requirement did not
outweigh benefits conferred upon locality.
Defendants' motions for summary judgment granted, and plaintiffs' motion denied.
West Headnotes
[1] W KeyCite Citing References for this Headnote
83 Commerce
c 83I1 Application to Particular Subjects and Methods of Regulation
m8311(A) In General
83k52.10 k. Environmental protection regulations. Most Cited Cases
149E Environmental Law ^' KeyCite Citing References for this Headnote
44149EVi11 Waste Disposal and Management
149Ek373 Interjurisdictional Issues
(:149Ek376 k. Interstate flows, effects, and burdens. Most Cited Cases
City's exclusive contract for collection of commercial waste, and city ordinance awarding exclusive rights to collect and
dispose of commercial waste to contractor, did not facially discriminate or even implicate interstate commerce, and,
thus, did not violate the dormant Commerce Clause, where they merely required use of contractor for commercial
waste collection within city, and bidding process through which contractor was awarded its exclusive rights did not
promote local economic interests over out-of-state interests. U.S.C.A. Const. Art. 1, § 8, cl. 3.
[2] M KeyCite Citing References for this Headnote
t;, 83 Commerce
831 Power to Regulate in General
0.83k11 Powers Remaining in States, and Limitations Thereon
4;83k12 k. In general. Most Cited Cases
The strictures of the dormant Commerce Clause are not limited to states, but also apply to counties within each state.
U.S.C.A. Const. Art. 1, § 8, cl. 3.
[3] KeyCite Citing References for this Headnote
o3083 Commerce
P831 Power to Regulate in General
83k11 Powers Remaining in • States, and Limitations Thereon
c 83k12 k. In general. Most Cited Cases
‹.83 CommerceIffl KeyCite Citing References for this Headnote
0831 Power to Regulate in General
83k11 Powers Remaining in States, and Limitations Thereon
k. Local matters affecting commerce. Most Cited Cases
ow483 Commerce LZIKeyCite Citing References for this Headnote
ora8311Application to Particular Subjects and Methods of Regulation
c 83II(A) In General
4 83k54 Preferences and Discriminations
83k54.1 k. In general. Most Cited Cases
If a statute is found to discriminate against interstate commerce on its face, or has the effect of discriminating against
out-of-state interests to the benefit of in -state economic interests, the statute will generally be struck down as a per se
violation of the dormant Commerce Clause, but, even if the statute discriminates against interstate commerce, it will be
upheld if it advances a legitimate local interest that cannot be fulfilled by other reasonable nondiscriminatory
alternatives. U.S.C.A. Const. Art. 1, § 8, cl. 3.
[4] .. KeyCite Citing References for this Headnote
83 Commerce
ow8311 Application to Particular Subjects and Methods of Regulation
o8311(A) in General
°083k52.10 k. Environmental protection regulations. Most Cited Cases
=v3149E Environmental Law KeyCite Citing References for this Headnote
149EVIII Waste Disposal and Management
o rw149Ek373 InterjurisdictionaI Issues
oa.149Ek376 k. Interstate flows, effects, and burdens. Most Cited Cases
City's exclusive contract for collection of commercial waste in city, and city ordinance awarding exclusive rights to collect
and dispose of commercial waste to contractor, in combination with county solid waste disposal district's requirement
that commercial waste be delivered to and processed at certain designated facilities, did not violate the dormant
Commerce Clause, where no company, local or out-of-state, was prevented from hauling or processing commercial
waste, even out of state, once it was collected within city. U.S.C.A. Const. Art. 1, § 8, cl. 3.
[51mo KeyCite Citing References for this Headnote
A83 Commerce
d8311 Application to Particular Subjects and Methods of Regulation
.83I1(A) In General
4 83k52.10 k. Environmental protection regulations. Most Cited Cases
.€149E Environmental LawM KeyCite Citing References for this Headnote
on,149EVIII Waste Disposal and Management
c149Ek373 lnterjurisdictional Issues
a149Ek376 k. Interstate flows, effects, and burdens. Most Cited Cases
County solid waste disposal district's requirement that commercial waste be delivered to and processed at certain
designated facilities did not facially discriminate against out-of-state haulers, and thus did not violate the dormant
Commerce Clause, where the requirement did not favor in -state haulers, but, rather, required all haulers to deliver
commercial waste to a designated facility. U.S.C.A. Const. Art. 1, § 8, cl. 3.
[6] =i f KeyCite Citing References for this Headnote
78 Civil Rights
78111 Federal Remedies in General
,oxp78k1328 Persons Protected and Entitled to Sue
c 78k1333 Injury and Causation
78k1333(6) k. Other particular cases and contexts. Most Cited Cases
83 Commerce WKeyCite Citing References for this Headnote
8311 Application to Particular Subjects and Methods of Regulation
• 8311(A) In General
w�83k52.10 k. Environmental protection regulations. Most Cited Cases
Companies engaged in business of collecting, hauling, and disposing of commercial construction and demolition waste
had constitutional standing to bring § 1983 action challenging city's exclusive contract for collection of commercial
waste in city, and city ordinance awarding exclusive rights to collect and dispose of commercial waste to contractor, as
violative of the dormant Commerce Clause, where it suffered an injury in fact in that it was legally excluded from
collecting commercial waste as a result of the agreement and ordinance. U.S.C.A. Const. Art. 1, § 8, cl. 3; U.S.C.A. Const.
Art. 3, § 2, cl. 1; 42 U.S.C.A. § 1983.
[7] r.. KeyCite Citing References for this Headnote
078 Civil 4.;-,.P78111 Federal Remedies in General
(.781(1328 Persons Protected and Entitled to Sue
78k1331 Persons Aggrieved, and Standing in General
78k1331(6) k. Other particular cases and contexts. Most Cited Cases
�HM
c 83 Commerce , KeyCite Citing References for this Headnote
8311 Application to Particular Subjects and Methods of Regulation
8311(A) In General
oP83k52.1O k. Environmental protection regulations. Most Cited Cases
Companies engaged in business of collecting, hauling, and disposing of commercial construction and demolition waste
lacked prudential standing to bring § 1983 action challenging city's exclusive contract for collection of commercial waste
in city, city ordinance awarding exclusive rights to collect and dispose of commercial waste to contractor, and county
solid waste disposal district's requirement that commercial waste be delivered to and processed at certain designated
facilities, as being facially discriminatory against out-of-state economic interests, in violation of the dormant Commerce
Clause, where they were local companies which did not ship, or contract with others to ship, commercial waste out-of-
state. U.S.C.A. Const. Art. 1, § 8, cl. 3; 42 U.S.C.A. § 1983.
[8] 1<KeyCite Citing References for this Headnote
c83 Commerce
.831I Application to Particular Subjects and Methods of Regulation
c 8311(A) In General
o83k52.10 k. Environmental protection regulations. Most Cited Cases
.149E Environmental Law . KeyCite Citing References for this Headnote
og,149EVIII Waste Disposal and Management
149Ek343 Constitutional Provisions, Statutes, and Ordinances
c..149Ek346 Validity
ofg149Ek346(2) k. Flow control measures. Most Cited Cases
c149E Environmental Law KeyCite Citing References for this Headnote
o.,,149EV111 Waste Disposal and Management
i149Ek373 Interjurisdictional Issues
149Ek376 k. Interstate flows, effects, and burdens. Most Cited Cases
Alleged discriminatory effect against interstate commerce under city's exclusive contract for collection of commercial
waste in city, city ordinance awarding exclusive rights to collect and dispose of commercial waste to contractor, and
county solid waste disposal district's requirement that commercial waste be delivered to and processed at certain
designated facilities did not outweigh benefits conferred upon locality, and thus did not violate the dormant Commerce
Clause, where contract, ordinance, and requirement, which did not reduce amount of recyclable materials which may
enter interstate commerce or increase cost associated with processing commercial waste, had legitimate local purpose
of ensuring economic viability of landfills within district and protecting public health and welfare. U.S.C.A. Const. Art. 1, §
8, cl. 3.
*1344 Michael Virgil Elsberry, Terry C. Young, Wayne Andrew Sorrell, II, Terry C. Young, Lowndes Drosdick Doster Kantor
& Reed, Orlando, FL, Stuart Z. Grossman, Grossman Roth PA, Coral Gables, FL, Guy Millard Burns, Johnson Pope Bokor
Ruppel & Burns, Tampa, FL, for Plaintiffs.
Kerry Lee Ezrol, Goren Cherof Doody & Ezrol P.A., Katherine Howland Miller, Brian Kenneth Hole, Erika R. Royal, Holland
& Knight, Ari Jonathan Glazer, Moskowitz Mandell Salim & Simowitz, Fort Lauderdale, FL, for Defendants.
ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANTS (OTHER THAN ON CORAL SPRINGS COUNTERCLAIM);
ADMINISTRATIVELY CLOSING THE CASE PENDING APPEAL
ELAN 5. GOLD, District Judge.
1. INTRODUCTION
This matter is before the Court on the following motions: (1) Motion for Summary Judgment by Defendant City of Coral
Springs, Florida ("Coral Springs") [DE 275]; (2) Motion for Summary Judgment by Defendant Waste Management of
Florida, Inc. ("Waste Management") [DE 281]; (3) Motion for Summary Judgment by the Broward Solid Waste Disposal
District ("District") [DE 288]; (4) Motion for Partial Summary Judgment by Plaintiffs Southern Waste Systems, LLC
("Southern Waste") and Sun Recycling, LLC's ("Sun") [DE 292] FN1; (5) Coral Springs' Motion To *1345 Strike or Exclude
Addendum to Expert Report of Mark P. Berkman [DE 235];FN2 (6) Waste Management's Motion to Strike Plaintiffs'
Statement of Material Facts [DE 337]; and (7) Waste Management's Motions to Strike Affidavit of Charles Lomangino
and Anthony Lomangino [DE 338 and 339].FN3 I held oral argument on these motions on Friday, January 15, 2010.FN4
FN1. Although Plaintiffs state that their motion is for "partial summary judgment," they are seeking judgment on all
issues of liability. Their briefing, however, fails to address most of the affirmative defenses of the Defendants. Because I
grant summary judgment on liability for the Defendants, I do not address the Defendants' further argument that the
Plaintiffs' motion for partial summary judgment should be denied on that ground, although I conclude their position has
merit,
FN2. I deny Coral Springs' motion to strike or exclude because it is mooted by my ruling on summary judgment in favor
of the Defendants.
FN3. The Defendants have filed cross -motions to adopt the other Defendants' Motions for Summary Judgement [DE 287
and 291].
FN4. During oral argument, I spent considerable time narrowing the undisputed facts. Where germane, I refer to the
parties' stipulations during oral argument in the body of this Order.
IL SUMMARY OF THE PLEADINGS
The Plaintiffs have filed a three -count Third Amended Complaint ("Third Amended Complaint") [DE 160] seeking
damages, declaratory and injunctive relief against Waste Management, the City of Coral Springs and the District. In
Count I, Plaintiffs allege that the Defendants have violated 42 U.S.C. § 1983 by violating the Plaintiffs' rights to engage in
interstate commerce under the Dormant Commerce Clause of the United States Constitution, U.S. Art. I, § 8, ct. 3 (the
"Dormant Commerce Clause"). In Count !!, the Plaintiffs allege that Defendants have violated Plaintiffs' rights to engage
in foreign commerce under the Dormant Commerce Clause.FN5 in Count III, Plaintiffs seek a declaratory judgment as to
"those operations that Southern Waste and Sun may carry on within Broward County." (Third Am. Comp!. 1153).
ENS, Although the Commerce Clause is an affirmative grant of power to Congress, U.S. Const. Art. I, § 8, cl. 3, the
Supreme Court has interpreted the clause to contain a negative aspect, the so-called "Dormant Commerce Clause." The
Dormant Commerce Clause "'prohibits economic protectionism -that is, regulatory measures designed to benefit in-
state economic interests by burdening out-of-state competitors.' " Wyoming v. Oklahoma, 502 U.S. 437, 112 S.Ct. 789,
800, 117 L.Ed.2d 1 (1992).
Prior to the filing of the Third Amended Complaint, I had granted the Defendants' motion to dismiss Count III of the
Second Amended Complaint. [DE 121]. That Count was pled as an alternative declaratory judgment claim to the effect
that the "materials" the Plaintiffs handle are not governed by Chapter 403, Florida Statutes. Although I did not address
Count III with prejudice, it was not further amended in the Third Amended Complaint.
The Defendants have filed answers and numerous affirmative defenses to the Third Amended Complaint. [DE 206, 207,
210]. Cora! Springs also has filed a counterclaim [DE 73]. Specifically, the City seeks damages for tortuous interference
against Southern Waste, an accounting and injunctive relief. Counter -Defendant Southern Waste has filed an answer to
the counterclaim [DE 78]. Because the counterclaim turns on the validity of the Franchise Agreement and City Ordinance
under the Dormant Commerce Clause, I conclude, pursuant to Fed.R.Civ.P. 54(b), that the resolution of the counterclaim
should await a final determination of the Dormant Commerce Clause issue in the event of any appeal. Because there is
no just reason for any delay of the final resolution*1346 of the Dormant Commerce Clause issue on appeal, and because
I conclude there are material facts in dispute as to liability and damages on the counterclaim,FN6 I shall direct entry of a
final judgment on Defendants' motions for summary judgment, but not on the City's counterclaim which I shall stay
pending the results of any appeal to the Eleventh Circuit Court of Appeals. I also shall direct entry of a final judgment on
the dismissal of Count III of the Second Amended Complaint.
FN6. There are material issues of fact affecting liability which require resolution at trial, including whether the claimed
intentional interference was with a business's relationship to the community at large. Ethan Allen, Inc. v. Georgetown
Manor, Inc., 647 So.2d 812, 815 (FIa.1994). At oral argument, the Plaintiffs conceded that final summary judgment on
liability in their favor would not be appropriate at this juncture.
III. FACTUAL BACKGROUND AND SUMMARY JUDGMENT STANDARD
The parties have filed a voluminous record purporting to comply with Local Rule requirements on summary judgment
and by submitting supporting affidavits and a multitude of depositions and the like [DE 277-280, 282, 284-286, 290-291,
294, 305, 306, 309-312, 314, 316-318, 323, 335-336, 343, 348, 350, 358-359]. Because it would not be helpful to the
resolution of this cause, and because it would unduly lengthen this Order without any meaningful benefit, 1 decline to
set forth a detailed factual recitation which discusses every fact presented, particularly where many of those facts are
not material. Instead, I set forth below material facts which I conclude are not in dispute as supported by the record
(with all inferences in favor of the non-moving party), and which are relevant to determine the specific issues raised by
the respective parties' summary judgment motions. I do so based on my own review of this voluminous factual record,
including the pleadings, the discovery and disclosure materials on file, and the affidavits.
My review has been made more difficult because the Plaintiffs have not complied with Southern District of Florida Local
Rule 7.5(B) by providing a single concise statement of material facts as to which they contend that there exists a genuine
issue to be tried. They have provided three Statements of Facts. In addition, Plaintiffs have provided an "Issue
Statement" which they have mislabeled as containing facts without proper citations to the record. Notwithstanding, I
decline to grant Waste Management's motion to strike [DE 337].
I have applied the traditional standard for review under Fed.R.Civ.P. 56 and Eleventh Circuit case law to the undisputed
material facts as determined below. This standard has been well -summarized in the parties' briefs. [ See DE 276 p. 3-4];
[DE 281, pp. 5-6; DE 292, p. 4-5]. Accordingly, I incorporate the standard by reference here.FN7
FN7. I grant Southern Waste's motion to strike the affidavit of Charles Lomangino [DE 338] and the affidavit of Anthony
Lomangino [DE 339] which were filed in support of Plaintiffs' motion for partial summary judgment. Mr. Charles
Lomangino was not disclosed as a witness, and the Defendants did not have an opportunity to depose him. I also concur
with Southern Waste that the Charles Lomangino's affidavit contains conclusionary allegations and opinions which were
not shown to be based on his personal knowledge, and, in any event, the affidavit lacks probative value because the
majority of statements are not based on specific facts. Even if I considered the affidavit, it would not change my
conclusions in this Order. Likewise, the majority of statements in Anthony Lomangino's affidavit are not based on
specific facts. Rather, the affidavit contains conclusionary allegations, opinions, and hearsay. This affidavit is stricken as
well. Even if I considered the affidavit, it would not change my conclusions.
*1347 IV. Summary of the Court's Ruling on Summary Judgment
I conclude the Defendants are entitled to summary judgment as a matter of law, and that the Plaintiffs' motion for
partial summary judgment should be denied. The crux of this case is that Southern Waste wants the right to compete
with Waste Management, the exclusive franchise holder for the collection of commercial waste and debris ("C & D") in
the City of Coral Springs. It then wants to haul the collected commercial waste to its sister company, Sun, which has in -
District waste processing and recycling facilities in Broward County. FN8 By doing so, Southern Waste and Sun thereby
seek to increase their market share for commercial C & D collection and processing.FN9
FN8. Plaintiffs are two related companies. Southern Waste is the hauling/collection arm. It utilizes trucks to collect solid
waste materials from construction and demolitions sites in South Florida. Sun represents the disposal/processing arm. It
owns and operates facilities at two disposal sites within the District (Dania and Pompano Beach) that accept
construction and demolition debris for processing, whereby some components are recycled and others are disposed of,
primarily by landfill. In their Third Amended Complaint, the Plaintiffs allege that they deal in "materials." However, it is
undisputed that this case is about commercial C & D and not some unspecified type of materials.
FN9. Plaintiffs have testified that their claims in this case are about commercial construction and demolition debris
generated in Coral Springs only, and not curbside waste collection. (Gusmano Depo. Tr. 245:16-246:13). At oral
argument, I inquired, "... [s]o you are here because you want to increase your market share legally in Coral Springs." Mr.
Elsberry, on behalf of the Plaintiffs replied, "That is correct." I also inquired: "So you want to make it (Coral Springs) an
open city, in effect, like some of the other cities in Broward....?" Mr. Elsberry replied, "That is correct."
In effect, the Plaintiffs want this Court, by judicial edict, to make Coral Springs an "open city," like Hollywood, Fort
Lauderdale and Oakland Park (members of the District) for purposes of commercial solid waste collection. FN10 The only
restriction Plaintiffs can identify as it pertains to their business in Coral Springs is the City's refusal to allow Southern
Waste to place collection containers at commercial C & D sites. This is strictly an issue associated with the exclusive
Franchise Agreement between Coral Springs and Waste Management. While the Plaintiffs' primary aim is to invalidate
the exclusive Franchise Agreement, and the companion city ordinance, they have attempted, in their Third Amended
Complaint, to blur their constitutional claims by referencing so-called "flow control" regulations put in place by the
District. The Plaintiffs then call the District's regulations, the City Ordinance and the Franchise Agreement "the Regime"
without meaningfully distinguishing among the components of "the Regime." The Plaintiffs use this tactical approach to
avoid clear Eleventh Circuit case law to which Southern Waste was a party.
FN10. Different cities within the District treat the collection of construction and demolition debris differently. Some
cities have exclusive franchises with haulers for the collection of all waste, including all construction and demolition
debris. Some cities do not have exclusive franchises with haulers of any type of waste.
At the same time, Plaintiffs are not against exclusive franchises within Broward cities. They are apparently happy with
them when they are able to win them, as Southern Waste has done in Oakland Park within the District. In those
instances, it has hardly confessed such arrangements constitute violations of the commerce clause. At no time during
the pendency of this litigation has it withdrawn from exclusivity arrangements in Oakland Park.FN11 But neither
Southern *1348 Waste nor Sun had competed for the exclusive franchise in Coral Springs. They are unhappy that Waste
Management did, and that it enjoys the benefits of the exclusive franchise to the Plaintiffs' financial detriment through
the remaining term of the Franchise Agreement.
FN11. In East Coast Recycling, Inc. v. The City of Port St. Lucie, 234 F.Supp.2d 1259, 1266 (S.D.FIa.2002), an operator of
recycling facilities brought a Section 1983 action against the city and the county, alleging that, through interlocal
agreement between defendants, and various city and county enabling ordinances, the defendants created a monopoly
impermissibly directing the flow of solid waste to county -owned facilities, in violation of the Commerce Clause. In
denying relief, the District Court noted, "The Court is quite confident that if East Coast were the favored facility, it would
vigorously defend the arrangement and argue that there is no commerce clause violation." In the same manner here,
this Court is quite confident that if Southern Waste were the exclusive franchise holder in Coral Springs, and Waste
Management was the complaining party, Southern Waste would vigorously claim that there is no Commerce Clause
violation. The long, contentious history in these solid waste cases simply makes the point. It simply depends case -to -case
as to who is financially disadvantaged.
Essentially, all three counts of the Third Amended Complaint return to the basic issue of Waste Management's sole right
to collect commercial construction and demolition debris as part of its Franchise Agreement with Coral Springs. All of the
evidence on summary judgment demonstrates that Plaintiffs' only real complaint is that Southern Waste is prevented by
City Ordinance § 8-3 and the Franchise Agreement from collecting construction and demolition debris at commercial
sites within the city.
While the Plaintiffs implicate the District in the Third Amended Complaint, nothing from the District prevents Southern
Waste from collecting C & D in Coral Springs. Instead, C & D collected in the District may be transported by haulers to
Sun's facilities without any interference from the District under any of its plans of operation or interlocal compacts.FN12
All of Plaintiffs' witnesses, their "experts," and the Defendants' witnesses have testified that construction and
demolition debris collected at commercial sites in Coral Springs can be delivered to Sun's facilities under the District's
rules and policies. The only obstruction preventing this from happening is the Franchise Agreement and City ordinance.
As such, the bottom line is that no Defendant has precluded Plaintiffs from taking materials they collect to Sun's facilities
or anywhere else they desire within the District or out-of-state once the materials have been collected by Southern
Waste and placed in their trucks. However, Sun does not want the materials hauled out-of-state because it does not
own processing facilities other than in Florida, and it has no contractual relations with any out-of-state facilities. For that
matter, nothing in the City's ordinance or in the Franchise Agreement prevents Waste Management from taking C & D
from Coral Springs to Sun's facilities if it chooses to do so. Waste Management has elected not to do so for its own
financial reasons since it hauls commercial C & D to its own processing facilities within the District.
FN12. As conceded at oral argument, Sun has been operating its facilities since 2001 without any interference from the
District. It was further conceded that commercial C & D, as well as residential C & D, are hauled by Southern Waste's two
facilities without interference from the District, notwithstanding that the hauling of commercial C & ID is in violation of
the City's ordinance and the Franchise Agreement.
In sum, there are no direct and material interstate commerce nexus concerns in this case. Southern Waste does not
transport materials to any facility outside the State of Florida, nor does it, or Sun, operate any facilities outside the State
of Florida. Neither*1349 has been denied the right by any Defendant from transporting commercial waste outside of the
State of Florida. In point of fact, if an injunction was issued by this Court, Southern Waste concedes it would simply
transfer the waste to Sun's facilities in Pompano and Dania, Broward County, Florida, for processing.FN13 Finally,
Plaintiffs do not sell any of their products directly to customers located outside the State of Florida. At best, Sun
contends that it sells materials to Florida customers, who, in turn, may ship the materials outside the State of Florida.
(Gusmano Depo. Tr. 124:11-23). For reasons further discussed below, there are no Dormant Commerce Clause
infringements pertaining to interstate or foreign commerce.
FN13. Plaintiff Southern Waste alleges that "Sun Recycling is prevent from receiving the raw materials that it processes
and resells ..." (Third Am. Compl.1136). But the Plaintiffs do not contend that it is the District that prevents Plaintiffs'
from collecting C & D in Coral Springs or processing C & D collected in Coral Springs at Sun's facilities. ( See Gusmano
Plaintiffs' Corp. Rep. Depo. Tr. 141:19-142:4; 144:5-9).
V. ANALYSIS
A. Prior Litigation Decided by the Eleventh Circuit Against Southern Waste.
[1] MThis is not the first time the issues raised in Plaintiffs' Third Amended Complaint have been litigated and resolved
against it.FN14 The essential and basic issue raised by the Third Amended Complaint concerns Coral Springs and Waste
Management's right to enter into an Exclusive Franchise Agreement for the collection of commercial solid waste within
Coral Springs. This same issue has been decided by the Eleventh Circuit Court of Appeals in a previous unsuccessful
lawsuit brought by Southern Waste, the same plaintiff as in this case, against the City of Delray Beach, Florida.
FN14. The Second Circuit noted almost a decade ago, "[a]Ithough the flood of milk cases has receded in recent years, it
has given way to a federal docket that is just as clogged with -of all things -garbage." SSC Corp. v. Town of Smithtown, 66
F.3d 502, 504 (2d Cir.1995), cert. denied, 516 U.S. 1112, 116 S.Ct. 911, 133 L.Ed.2d 842 (1966). The following is a sample
of the litigation involving the Plaintiffs where they have challenged local governments' waste management methods:
Southern Waste, LLC v. City of Sunrise, Case No. 09-61302-CIV (S.D.Fla.); Southern Waste Systems, LLC v. City of Delray
Beach, Fla., 420 F.3d 1288 (11th Cir.2005); Southern Waste Systems, LLC v. Town of Lake Park, Fla & Waste Mgmt. of
Florida, Inc., Case No. 05-80174-CIV (S.D.FIa.); Southern Waste Systems, LLC v. Town of Davie, Fla. & Waste Mgmt. Inc. of
Florida, Case No. 05-608347-CIV (S.D.Fla).
When faced with the fact that Coral Spring's Ordinance § 8-3 and franchise is virtually identical to the ordinance and
franchise that were upheld by the Eleventh Circuit, Plaintiffs have patched together a legal theory involving a "Plow
Control Regime" of regulations that patently lacks merit and, frankly, contain misrepresentations unsupported by the
factual record; namely, Plaintiffs allege that (1) Coral Springs has a flow control ordinance directing where waste must
be processed and disposed of, and (2) that the District prevents Southern Waste from collecting such waste, and further
prevents Sun from receiving construction and demolition debris to process.
In Southern Waste Systems v. City of Delray Beach, 420 F.3d 1288 (11th Cir.2005), the Eleventh Circuit rejected Southern
Waste's challenge to Waste Management's exclusive franchise agreement with the City of Delray Beach under the
Dormant Commerce Clause. A comparison of both cases establishes that the material facts are essentially the same. In
the City of Delray Beach case, the City issued a request for proposals seeking a single contractor*1350 to provide
comprehensive waste collection services within the City. Under that request for proposal ("RFP"), the successful bidder
would become the exclusive provider of residential waste collection services, residential waste recycling services, and
commercial waste collections services throughout the City. The agreement was to have an initial term of five years.
Here, exclusivity is limited only to commercial solid waste collection services. Like the Delray Beach case, Coral Springs'
ordinance is not a "flow control ordinance." FN15 It does not direct the flow of waste to any specific facility. Rather, it is
a mandatory service ordinance compelling residents to use a particular franchise contractor for commercial C & D. As
such, this case is directly in line with the situation in the Delray Beach case, with one compelling difference; namely,
Southern Waste Systems, which is in the business of collecting and disposing of construction and demolition debris, can
readily compete within the City of Coral Springs for the collection of residential solid waste collection services. In order
to do so, Southern Waste had to be a "licensed hauler" in accordance with City Ordinance 95-135. With such a license,
Southern Waste would be authorized to collect and dispose of construction and demolition debris for single family and
multi -family residential sites.
FN15. As stated in United Haulers Association, Inc. v. Oneida -Herkimer Solid Waste Management Authority, 550 U.S.,
330, 127 S.Ct. 1786, 1790, 167 L.Ed.2d 655 (2007), " 'flow control' ordinances require trash haulers to deliver solid waste
to a particular waste processing facility." Here, the City Ordinance does not require Waste Management, or anyone else,
to deliver waste to a particular private processing facility, let alone one operated by the District.
In the City of Delray case, Southern Waste lacked the capacity to provide the full range of services specified in the
proposal and did not submit a bid to the City of Delray Beach. The same is true here. Neither Southern Waste, nor its
sister company, Sun Recycling, LLC, submitted a bid to the City of Coral Springs, nor did either attend the pre -proposal
conference, or otherwise express any interest in providing services to the City of Coral Springs in response to the RFP.
Moreover, in the City of Delray case, five companies, including BFI Waste Systems of North America, Inc. -a non -Florida
company -did submit bids. Following a public hearing, the City awarded the contract to BFI, the lowest bidder.FN16 As
such, in that case, Southern Waste conceded that local firms enjoyed no preference or advantage in the bidding and
selection process. The same is true here. Southern Waste does not contend that Waste Management was awarded the
bid other than through a non-discriminatory, open and fair bidding process.
FN16. In City of Delray, the City and BFl entered into a contract that provided that BFI would be the exclusive waste
hauler in the City. The contract further provided that, while the City would set the rates for waste collection, BFI would
directly bill and collect payment from the City's residents, and then transmit a 5% franchise fee to the City. The City
codified the contract by municipal ordinance.
In the present case, the City of Coral Springs, on May 20,1998, issued a Request for Proposals for Solid Waste Collection
and Disposal and Recycling Services. A pre -proposal conference was held on June 8, 1998. Eleven firms attended the pre -
proposal and four firms were short-listed by the City's Selection Committee. The four firms included BFI-the same non -
Florida company involved in the City of Delray case, as well as Waste Management, Kimmins Recycling and All Service
Refuse. All Service Refuse was incorporated in Florida in 1979 but later was *1351 merged into Republic Services of
Florida, a Delaware limited partnership. BFI was a Delaware corporation. The Selection Committee recommended that
the RFP be awarded to Waste Management as the highest ranked proposer under the criteria set forth in the Request
for Proposals. Thereafter on February 16, 1999, the City Commission accepted the recommendation of the Selection
Committee and approved a contract with Waste. Management. The evidence of record conclusively establishes that the
bid process was fair, non-discriminatory and open to all and did not favor one company over another because of its
locale. The bid process also included out-of-state participants.
The Franchise Agreement, among other rights, grants to Waste Management "the exclusive franchise and concomitant
obligation to provide solid waste collection services within the municipal borders, except for residential construction and
demolition debris ... and except for commercial recycling pursuant to § 403.7046, Florida Statutes." [DE 280-6, p. 3].
According to § 2.02 of the Agreement, Waste Management is to delivery the solid waste collected [both residential and
commercial] "... to the resource recovery system transfer or disposal facility or facilities designated in the plan of
operation under the lnterlocal Agreement with Broward County for Solid Waste Disposal Service, dated November 25,
1986, unless otherwise provided for by agreement with the Broward Solid Waste Disposal District to accommodate a
City waste material recycling program." Id. Pursuant to § 8-3 of the City Code, every owner or tenant is required to
utilize Waste Management as the City's exclusive provider, to collect and dispose of all solid waste, refuse, trash and
debris generated at commercial construction or demolition sites and requires every owner, tenant or resident to utilize a
licensed hauler for residential construction and demolition sites.
Unlike in he City of Delray Beach case, in this case, Southern Waste does not claim in its Third Amended Complaint that
any customer to whom Southern Waste has supplied C & D commercial service in violation of the City's Ordinance has
been cited, nor has Southern Waste claimed that it has been fined for violating § 8-35(8)(a) which imposes a maximum
$500 fine for violation of the Code.FN17 Nonetheless, the City of Coral Springs has provided ample evidence that
Southern Waste has been systematically violating the City Code by collecting commercial construction and demolition
debris since at least 2002. It continues to do so even after receiving Notices of Violations and has even offered to pay
fines assessed against its customers.
FN17. In the City of Delray Beach case, a customer to whom Southern Waste supplied C & D services was cited for
violating the ordinance. Southern Waste filed the action to challenge the ordinance and the underlying agreement
between the City and BFI. Southern Waste asked the court to declare that the exclusive franchise violated the
Commerce Clause of the United States Constitution and to enjoin its enforcement as to C & D. After Waste Management
purchased various assets of BFI and assumed BFI's rights and obligations under the contract and ordinance, it was
substituted as a party.
[2] In the City of Delray Beach case, the district court granted partial summary judgment to Southern Waste on its
claim for injunctive and declaratory relief, holding that the exclusive franchise agreement violated the Commerce
Clause, and enjoined enforcement of the portions of the agreement and ordinance pertaining to C & D. Upon review,
the Eleventh Circuit reversed holding that the contract in question did not violate the Commerce Clause because it did
not favor in -state haulers. In rendering its decision, the Eleventh Circuit determined that the City's ordinance*1352 did
not violate the "dormant" side of the Commerce clause FN18 "... because it award the exclusive right to collect waste in
the City to one company, thereby excluding all other companies -both interstate and intrastate -from waste collection."
City of Delray Beach, 420 F.3d at 1290.
FN18. The Commerce Clause provides that "Congress shall have Power ... to regulate Commerce with foreign Nations,
and among the several States, and with the Indian Tribes." U.S. Const., Art. I, § 8, cl. 3. The Court has long interpreted
the very existence of Congress' powers under the Commerce Clause to implicitly preclude the States from imposing
excessive restrictions on that same power. See Dennis v. Higgins, 498 U.S. 439, 447, 111 S.Ct. 865, 112 L.Ed.2d 969
(1991). This implicit Constitutional restriction upon the States has become known as the "dormant" or "negative"
Commerce Clause doctrine. Further, the strictures of the dormant Commerce Clause are not limited to States, but also
apply to counties within each State. Ft. Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources, 504 U.S.
353, 112 S.Ct. 2019, 119 L.Ed.2d 139 (1992).
In a manner which resolves the first prong analysis in this case as it relates to the Franchise Agreement and the City's
Ordinance, the Eleventh Circuit stated:
In this case, SWS claims that the City's ordinance violates the dormant Commerce Clause because it awards the exclusive
right to collect waste in the City to one company, thereby excluding all other companies -both interstate and intrastate -
from waste collection. SWS relies for this claim on the Supreme Court's decision in C & A Carbone, Inc. v. Town of
Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L,Fd.2d 399 (1994), in that case, the Court struck down a municipal
ordinance that awarded exclusive rights to process all town solid waste to a single, privately owned local transfer
station. 511 U.S. at 391, 114 S.Ct. 1677. The ordinance mandated that all waste haulers in the town transport their
waste to the local station far processing. The Court held that such an arrangement constituted a "forced business
transaction" that unconstitutionally favored the local processor, thereby discriminating against out-of-state interests. Id.
at 391-92, 114 S.Ct. 1677.
Following Carbone, waste haulers around the country challenged municipal waste collection agreements that awarded
exclusive rights to collect waste to one hauler, arguing that their exclusivity constitutes a forced business transaction
that offends the Commerce Clause. None was successful. See Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d
178 (1st Cir.1999); USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272 (2d Cir.1995); Barker Sanitation v. City of
Nebraska City, No. 4:02CV3330, slip op. at 14-22 [2003 WL 24275215] (D.Neb. Nov. 4, 2003); Waste Management of
Alameda County, Inc. v. Biagini Waste Reduction Sys. Inc., 63 Cal.App.4th 1488, 74 Cal.Rptr.2d 676 (Cai.App. 1
Dist.1998). See also Harvey & Harvey, Inc. v. County of Chester, 68 F.3d 788, 807 (3d Cir.1995) (dormant Commerce
Clause inquiry should focus "on the designation process, on the reasonableness of the duration of the designation and
on the practical likelihood of [designation of] an out-of-state facility"). These courts all agreed that there is nothing
inherently discriminatory in the award of an exclusive waste hauling contract. As the Second Circuit noted in USA
Recycling:
For ninety years, it has been settled law that garbage collection and disposal is a core function of local government in
the United States. At their option, cities may provide garbage pick-up to their citizens directly ... Or they may rely on a
closely regulated private market to provide those services.... [W]e reject the *1353 plaintiffs' contention that the
Carbone decision fashioned from the "dormant" Commerce clause a new, and unprecedentedly sweeping, limitation on
local government authority to provide basic sanitation services to local residents and businesses, on an exclusive basis
and financed by tax dollars. Id. at 1275-76.
The Commerce Clause forbids only the promotion of local economic interests over out-of-state interests. It does not
forbid exclusive franchise agreements whereby a city selects one waste hauler to provide basic waste collection services
to its citizens, so long as the bidding process is open to all, and there is no requirement that local interests be favored in
the performance of the contract. As the Second Circuit concluded in USA Recycling:
There is no reason to assume that by shifting all hiring of garbage haulers into the hands of one buyer, the flow of
interstate commerce will be reduced, and thereby burdened. In fact, the open bidding process used by the Town to hire
a single garbage hauler could readily result in the hiring of an out-of-state garbage hauler -which would actually shift a
portion of the garbage collection market into interstate commerce. Id.
indeed, in the instant case, the waste collection franchise was not only open to out-of-state competitors, but it was, in
fact, awarded to one. There is nothing in the record to support the claim that the City's actions constituted the sort of
"local economic protectionism" that the Commerce Clause forbids. Carbone, 511 U.S. at 390, 114 S.Ct. 1677. We agree
with the First Circuit that "to the extent that in -state and out-of-state bidders are allowed to compete freely on a level
playing filed, there is no cause for constitutional concern." Houlton, 175 F.3d at 189. The award of an exclusive waste
hauling contract to the low bidder after a fair and open bidding process that has the effect of excluding all others for the
term of the agreement does not, for this reason, offend the Commerce Cause.
City of Delray Beach, 420 F.3d at 1290 (Emphasis added).
131 As explained in City of Delray Beach, a two tier analysis is implemented to determine whether a statutory scheme
violates the dormant Commerce Clause. City of Philadelphia v. New Jersey, 437 U.S. 617, 624, 98 S.Ct. 2531, S7 L.Ed.2d
475 (1978); Delray Beach, 420 F.3d at 1290. Under the first tier, if the statute is found to discriminate against interstate
commerce on its face, or has the effect of discriminating against out-of-state interests to the benefit of in -state
economic interests, the statute will generally be struck down as a per se constitutional violation. id. But, even if the
statute discriminates against interstate commerce, it will be upheld if it advances a legitimate local interest that cannot
be fulfilled by other reasonable nondiscriminatory alternatives. C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 392,114
S.Ct. 1677, 128 L.Ed.2d 399 (1994). "At a minimum such facial discrimination invokes the strictest scrutiny of any
purported legitimate local purpose and of the absence of nondiscriminatory alternatives." Hughes v. Oklahoma, 441 U.S.
322, 99 S.Ct. 1727, 1737, 60 L.Ed.2d 250 (1979).
If the statute passes the per se analysis, it may nevertheless be found unconstitutional under the second tier of analysis.
With the second category -the "evenhanded statutes" that effectuate a legitimate local interest and that only
incidentally affect interstate commerce -the Court must apply the " Pike balancing test." The statute will be upheld
unless the burden it imposes on interstate commerce is " `clearly*1354 excessive in relation to the putative local
benefits.' Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970). In City of Delray Beach, the
Eleventh Circuit did not consider the second tier analysis because the district court did not reach this second step in its
review of the ordinance. City of Delray Beach, 420 F.3d at 1290 n. 3.
Here, based upon my review of the entire record, and applying applicable summary judgment standards, I conclude that
the Franchise Agreement and City Ordinance do not constitute per se constitutional violations by discriminating on their
face, individually and collectively, by awarding exclusive rights to collect and dispose of commercial waste to Waste
Management; that is, Ordinance § 8-3 does not facially discriminate or even implicate interstate commerce as it merely
requires the use of Waste Management for commercial waste collection in Coral Springs. As the Eleventh Circuit
concluded in City of Delray Beach, there is nothing in the bid process here which promoted local economic interests over
out-of-state interests. The bidding process was open to all, and there was no requirement that local interests be favored
in the performance of the contract. I find nothing in the record to support the claim that the City's actions constituted
the sort of "local economic protection" that the Commerce Clause forbids.FN19 Merely because the City Ordinance and
Franchise Agreement required compliance with the District's Interlocal Agreement and Plan of Operations for disposal
does not itself violate the Commerce Clause. East Coast Recycling, Inc. v. City of Port St. Lucie, 234 F.Supp.2d 1259, 1264
(S.D.Fla.2002) (holding that "mere reference to the Interlocal Agreement in the city's ordinances, even assuming the
Interlocal Agreement impermissibly burdens interstate commerce by restricting the flow of solid waste, is not enough to
render those ordinances invalid.").FN20
FN19. Prior to the Eleventh Circuit's opinion in City of Delray Beach, Southern Waste had filed a similar challenge to the
Town of Davie and Waste Management's franchise agreement and sought preliminary injunction. Southern Waste
Systems, Inc. v. Town of Davie, Florida and Waste Management Inc. of Florida, Case No. 05-60847-DIV-DIMITROULEAS.
In that case Southern Waste claimed that the Town's exclusive solid waste franchise agreement with Waste
Management violated the Dormant Commerce Clause because commercial builders and contractors were not free to
transact business with any contractor, other than Waste management, for the removal of C & D materials. Southern
Waste claimed that the Town of Davie does not pay for the service provided by Waste Management -only builders and
contractors pay Waste Management and that the Town received a "financial donation" from Waste Management
whereby a portion of the revenue generated by Waste Management is given back to the Town. Denying preliminary
injunction, Judge Dimitrouleas found no per se violation. Additionally, balancing the effects of the Franchise Agreement
upon interstate commerce against the putative local benefits, the Court found that any burden on interstate commerce
can only fairly be described as de minimis, The case was ultimately voluntarily dismissed by Southern Waste.
FN20, Even assuming I concluded that the alleged "scheme" in the Interlocal Agreement and Plan of Operations was
unconstitutional, Southern Waste would still be prohibited by the Franchise Agreement and Ordinance from collecting C
& D from commercial sites within Coral Springs, which, in turn, would preclude it from taking from taking the materials
from Coral Springs to Sun.
B. The District's Flow Control Regulations
14] EThe Plaintiffs do not raise in their Third Amended Complaint, or argue on summary judgment, any second prong
Pike issues solely related to the Franchise Agreement and Ordinance.FN21 instead, *1355 they do so as to the "Flow
Regime." Accordingly, I do not apply a Pike analysis to the Franchise Agreement and Ordinance alone, but, if I did,
would reach the same result as that set forth below regarding the District's regulations.
FN21. At oral argument, the Plaintiffs concede that they did not claim a Pike violation based only on the City Ordinance
and Franchise Agreement.
Attempting to avoid the clear precedent of City of Delray Beach, the Plaintiffs have blurred the analysis by combining
their claims regarding the Franchise Agreement and City Ordinance with a purported "flow control" regulation put in
place by the Broward Solid Waste Disposal District. The linkage, claim Plaintiffs, is that the Franchise Agreement
provides that Waste Management must deliver the solid waste collected in Coral Springs to a resource recovery system
transfer or disposal facility or facilities designated in the Plan of Operation under the Interlocal Agreement with Broward
County for Solid Waste Disposal Services ("BSWDD"). The Plaintiffs claim that "[s]uch combination of contracts,
ordinances and interlocal agreements constitute de facto regulation by Coral Springs and the BSWDD of the processing
and disposal of the Southern Waste and Sun Recycling dealt with materials that discriminates against interstate and
foreign commerce by requiring all processing and disposal of such waste to occur within Broward County, Florida ...."
(Third Am. Compl., 1131).
To begin with, neither Southern Waste nor Sun can point to any action taken by the District which prevents either of
them from hauling and processing C & D once it is collected within Coral Springs. No rule or regulation of the District
prohibits Southern Waste from taking materials to Sun's disposal facility in Broward County (even commercial materials
in violation of the Franchise Agreement). To the contrary, the District's Plan of Operation specifically envisions and
allows such transport and delivery.FN22 In fact, Sun's facilities in Pompano and Dania have always been listed as
approved alternative facilities for Unprocessable Waste and Construction and Demolition Debris under Broward
County's Plan of Operation, and, unlike Sun's competitors in other counties in Florida that are not fisted as approved
facilities, Sun is a favored local facility under the Plan of Operation. No rule or regulation of the District prevents or
prohibits collection by Southern Waste in Coral Springs,
FN22. I discuss this point in more detail later in this Order.
The situation here is that Plaintiffs are local companies, who conduct an entirely local business. Southern Waste
concedes it does not transport materials to any facility outside of the State of Florida (and has no desire to do so). Nor
do the Plaintiffs own or operate any facilities outside the State of Florida. Sun has further admitted that none of its
customers (to whom it sells the various components that Southern Waste collects) are located outside of the State of
Florida. Neither Southern Waste or Sun have requested permission from the District to transport waste outside of the
State of Florida. The interstate nexus is nonexistent and contrived.FN23
FN23. What is truly bizarre about this case is Sun's argument that its own facilities are currently operating in violation of
the Interlocal Agreement and the Plan of Operations while the District unequivocally says that Sun's facilities are in full
compliance, and none of the facilities has ever received a notification of non-compliance. At oral argument, I inquired if
Sun was prepared to cease its operations immediately within the District. Mr. Elsberry, on behalf of Sun, replied, "No,
sir, I didn't mean to suggest that."
Given this situation, Southern Waste, now joined by Sun, once again seeks to reassert prior unsuccessful Dormant
Commerce*1356 Clause claims by implicating "the flow control regime." [DE 292, p. 1]. They claim that the City, working
in concert with the Broward Solid Waste Disposal District and Waste Management, discriminates against interstate
commerce by (1) requiring all material generated at commercial construction and demolitions sites within the City be
delivered to and processed at certain privately -owned local facilities, and (2) impeding the flow of the materials, and the
byproducts created from processing such materials, from entering interstate and foreign commerce. They contend that
the "flow control regime" comprises four elements: (1) the Interlocal Agreement with Broward County for Solid Waste
Disposal Service (the "ILA"); (2) the Plan of Operations ("the Plan"); the City's ordinances, specifically Ordinance § S-3
("the Ordinance"), and the Franchise Agreement between the City and Waste Management.FN24
FN24. The Plaintiffs claim without evidentiary foundation sufficient for summary judgment that the City's actions are
precluding materials generated in the City from being processed out-of-state because the city is using its leverage in the
collection and disposal markets to exert a regulatory effect in the processing market by requiring Waste Management to
dispose of the material at the processing facilities designated in the Plan, which are only located in Broward County.
However, neither the Interlocal Agreement nor the accompanying Plan of Operations prevents the delivery of solid
waste and C & D outside of the State of Florida.
Virtually ignoring the Eleventh Circuit's City of Delray Beach decision, the Plaintiffs claim that the Defendants have
attempted to circumvent what is constitutionally permissible with respect to controlling the flow of materials generated
in Broward municipalities, as previously determined in Coastal Carting Ltd. Inc. v. Broward County, Florida, 75 F.Supp.2d
1350 (S.D.FIa.1999). Of course, much has happened since Judge Gonzalez issued his Coastal Carting decision. Since that
time, the Interlocal Agreement and the Plan of Operations now allow, and have done so during the pendency of this
litigation, the disposal of solid waste and construction and demolition debris outside of the State of Florida and at
alternative locations in the District, but not at other facilities in the State of Florida outside of the District. Also, the
United States Supreme Court has rendered additional decisions which further clarify the applicable law on the Dormant
Commerce Clause. I will discuss that in due course. But, since Plaintiffs rely on Coastal Carting case, it is first important
to put the circumstances of that case in context.
In Coastal Carting, a solid waste hauler brought an action against Broward County; twenty-three municipalities in
Broward County, and the Resource Recovery Board of Broward Solid Waste Disposal District alleging that Broward
County Ordinances §§ 87-3 and 87-4 were unconstitutional and unenforceable. Citing to the Supreme Court's decision in
Carbone, the Court found that the restrictions imposed by Ordinances §§ 87-3 and 87-4 on waste collection and disposal
in Broward County violated the Commerce Clause of the United States Constitution. Judge Gonzalez found that the "...
real problem in Broward County, which is analogous to the problem in Carbone, is that, with respect to the local waste,
the ordinance favors two Broward County transfer stations thereby forcing waste haulers to keep the waste in the
County while depriving interstate or intercounty interests of access to the local processing market.' 75 F.Supp.2d at
1356. In essence, Judge Gonzalez found that the real problem is the fact that Coastal, the hauler, was prevented from
taking the waste outside of Broward County. Id.
*1357 The complex Broward scheme, which was the subject of the Coastal Carting case, shares a common factual
background with this case, with some important additions.FN25 In BFI Waste Systems of North America, Inc. v. Broward
County, Florida, 209 F.R.D. 509 (S.D.FIa.2002), Judge Gonzalez again addressed the interrelationships among the various
entities in a matter which is pertinent here:
FN25. The parties' factual statements are consistent with Judge Gonzalez's order. I see no reason to restate what has
been already set forth by Judge Gonzalez, except to note important additions which have occurred since his order.
The relationships between and among the various agreements, ordinances, parties, and persons absent from this case,
raised by the County's Motion to Dismiss, are complex. But, because the precise nature of these relationships is an
essential element of the foundation upon which the Court's Order is based, the Court will attempt to elucidate them as
succinctly as practicable.
With its landfills burgeoning in the late 1980s, the County, like many political subdivisions in states nationwide at that
time, took steps to address the problems associated with the disposal of solid waste. The County, along with twenty-
three (23) of the County's incorporated municipalities (the "Cities"), entered into "An Interlocal Agreement with
Broward County for Solid Waste Disposal" (the "Interlocal Agreement"). See Comp'. 119 and Compl. Ex. A. (a copy of the
InterlocaI Agreement).
The Interlocal Agreement, and the ordinances adopted, respectively, by the individual Cities and the County pursuant
thereto, collectively established the Broward Solid Waste Disposal District (the "District"). See Interlocal Agreement 11
5.1; Coastal Carting, 75 F.Supp.2d at 1352. The District was therefore comprised of twenty-four (24) separate entities:
the twenty-three (23) incorporated municipalities---i.e., the Cities; and the twenty-fourth entity, which was the County
itself. See Coastal Carting, 75 F.Supp.2d at 1352. Importantly for addressing the merits of the County's Motion to
Dismiss, the County assumed its various obligations under the Interlocal Agreement in two distinct capacities: (1) the
County assumed some of its obligations as the representative of the unincorporated areas of the County, and (2) the
County assumed other obligations as the County itself, that is, the political subdivision in which the Cities are situated.
See Interlocal Agreement 111.5 ("the COUNTY is entering this Agreement both representing unincorporated County, a
waste generation area with solid waste requiring disposal, and COUNTY, as the party assuming the obligation under this
Agreement for the disposal of solid waste for the [Cities] as well as for the unincorporated County").
The County, in the "Factual Background" section of its Motion to Dismiss, states that a twenty-fourth incorporated
municipality subsequently elected to join the District, bringing the total number of entities comprising the District to
twenty-five (25).
The contractual rights and obligations created in the Interlocal Agreement are manifold. The Cities and the County
agreed that the County, either by itself or by engaging independent contractors, would construct and maintain a
"resource recovery system," which would include two new solid waste disposal facilities. See InterlocaI Agreement VI]
1.3,1.4, and 2.17. The County financed the construction of these state-of-the-art disposal facilities by issuing bonds. See
Comp!.'(] 6. The Cities and the County also agreed that the Cities *1358 and the County, acting as representative of the
unincorporated areas, would adopt "flow control ordinances" directing that solid waste generated in their respective
geographicareas be delivered to the designated facilities of the resource recovery system. See Interlocal Agreement Ili
3.2.
The constitutionality, under the Commerce Clause of the United States Constitution, of the flow control ordinance
passed by the County pursuant to the Interlocal Agreement i.e., Broward, Fla., Ordinances 87-3 and 87-4 (March 10,
1987)-was the subject of Coastal Carting; this Court held that those ordinances unconstitutionally discriminated against
interstate commerce. See Coastal Carting, 75 F.Supp.2d at 1357.
To ensure that the County would be able to meet its financial obligations associated with the bond issuance, as well as
its other obligations under the Interlocal Agreement, the Cities and the County -again, acting as representative of the
unincorporated areas -also agreed, inter alia, that they would include in any contracts between them and solid waste
haulers a provision requiring all solid waste hauled under such contracts to be delivered to designated disposal facilities
within the resource recovery system. See Interlocal Agreement ¶ 3.3. To avoid ambiguity regarding whom such hauling
contract provisions were intended to benefit, the Interlocal Agreement provides that w[t]he COUNTY will be a third party
beneficiary" of such provisions. See Interlocal Agreement ¶ 3.3. In essence, therefore, the County itself is intended to be
the "third party beneficiary" of the contracts it signs, as the representative of the unincorporated areas, with solid waste
haulers.
The import of all of this is made clearer by Articles 5, 6 and 7 of the Interlocal Agreement, which relate, respectively, to
the following: the creation of the Resource Recovery Board (the "RRB"); the setting and charging of "tipping fees" and
service charges; and the collection of tipping fees. See Interlocal Agreement Art. 5, 6 and 7. See lnterlocal Agreement ¶¶
2.16, 5.1.
The RRB, as the governing body of the District, adopts and revises the tipping fees that solid waste haulers are charged
for delivering solid waste to the disposal facilities of the resource recovery system. See Interlocal Agreement ¶ 6.1.
While the RRB sets the amount of tipping fees haulers are to be charged, under the InterlocaI Agreement it is the
County, as the County itself, that bills haulers and collects the tipping fees. See lnterlocal Agreement 117.1. The
Interlocal Agreement further provides that the Cities and the County, as representative of the unincorporated areas, will
include in any contracts with haulers provisions requiring the haulers to pay tipping fees to the County, and that "the
COUNTY shall be a third party beneficiary of such provision." See Interlocal Agreement ¶ 7.5. Once again, the County
itself is the "third party beneficiary" of contracts the County, acting as representative of the unincorporated areas,
enters into with haulers.
The express purpose of the Interlocal Agreement can be summed up as follows. The County agreed to construct two
state-of-the-art solid waste disposal facilities -and incur the indebtedness associated with that project, in the form of its
bond issuance -in exchange for the pledge of the Cities, and the County as representative of the unincorporated areas, to
guarantee the County a revenue stream of tipping fees by including provisions appropriate to this purpose in any
contracts they sign with solid waste haulers. Paragraph 1.4 of the Interlocal Agreement states:
*1359 It is recognized by [the Cities] and COUNTY that the proposed resource recovery system to be constructed,
operated, maintained and repaired by the COUNTY ... will be done in reliance upon the existence of the committed flow
of solid waste from [the Cities] and unincorporated County and the revenue generating capabilities of [the District]
created herein.
BFI Waste, 209 F.R.D. 509, 510-12 (S.D.Fla.2002).
Moreover, in BFI Waste, Judge Gonzalez stated that the arrangement met a stumbling block by virtue of his earlier
decision in Coastal Carting. He further explained:
In the wake of this Court's Coastal Carting decision, the Cities and the County took several steps. First, on May 21, 1999,
the Cities and the County amended the Interlocal Agreement. See Compl. ¶¶ 32-33 and Ex. E. In one of the "Whereas"
clauses prefacing the amendment to the Interlocal Agreement, the text refers specifically to this Court's decision in
Coastal Carting and the Supreme Court's decision in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 114 S.Ct.
1677, 128 L.Ed.2d 399 (1994) upon which this Court in part based its ruling in Coastal Carting, and then states as follows:
[lit is the intent of this amendment to require the parties to the lnterlocal Agreement to conform the laws and rules
governing [the District] to the case law regarding flow control and remove all barriers, restriction, impediments and
regulations of whatever nature from any solid waste generated in Broward County which is destined for disposal outside
of the State of Florida. Compl, Ex. E at 1. The amendment revised paragraph 3.3 of the Interlocal Agreement to provide
the following:
Each party agrees to include in any contract or contract amendments with haulers executed after the date of execution
hereof, a provision that all solid waste shall be delivered to the resource recovery system transfer or disposal facility or
facilities designated in the plan of operations and to enforce such provision, with the exception of waste generated in
Broward County which is shown to be destined for transportation to any destination outside of the State of Florida.
Compl. Ex. E at 2 (emphasis added). The. RRB adopted an analogous revision to the Plan of Operations on March 19,
1999. See Compl. Ex. F. at 1.
On July 13, 1999, the County amended Ordinance 87-4, one of those comprising its flow control ordinance found to be
unconstitutional in Coastal Carting. See Compl. 111 29-31 and Ex. D. Analogously to the amendment to the Interlocal
Agreement, one of the "Whereas" clauses prefacing the amendment to the County's flow control ordinance states:
Even though the County disputes the Court's findings, in an effort to avoid future litigation which challenges the validity
of flow control ordinances adopted by the County and the [Cities], it is the intent of this amendment to conform the
laws and rules governing [the District] to the case law regarding flow control and to remove all barriers, restrictions,
impediments and regulations of whatever nature from any solid waste generated in Broward County which is destined
for disposal outside of the State of Florida ...
Comp!. Ex. D at 1-2. The amendment recites the original content of the ordinance, that is, "the County on behalf of the
unincorporated area of Broward County, Florida, hereby directs that all solid waste generated within the unincorporated
area of the county be delivered*1360 to the resource recovery system transfer or disposal facility of facilities designated
in the plan of operation under the Interlocal Agreement ..." See Compl. Ex. D at 2. The amendment then states:
Waste generated in Broward County which is shown to be destined for transportation to any destination outside of the
State of Florida based upon a sworn affidavit of a hauler delivered to the County reciting facts which evidence the
transportation and disposal of waste outside the State of Florida is excluded from the flow restrictions contained herein.
Compl. Ex. E at 3. The amendment also provides that the County "will confirm [sic] the terms and conditions of any
agreement it may have with a hauler of solid waste to the terms and conditions of the Interlocal Agreement." Compl. Ex.
E at 3.
Therefore, what is important in the present case is that in 1999, the Plan of Operation was substantially amended. The
Fifth Amendment to the Interlocal Agreement dated May 21, 1999, amended Section 3.3 to provide an exception for any
waste generated in Broward County which is shown to be destined for transportation to any destination outside the
State of Florida. Likewise, in 1999, the Plan of Operation was amended to provide that "[w]aste generated in Broward
County which is shown to be destined for transportation to any destination outside of the state of Florida ... is excluded
from the flow control restrictions contained herein." Section I(B) of the Plan of Operations makes clear that it applies to
all solid waste generated in the District, including C & D.
Even though Plaintiffs acknowledge that the Plan of Operations and Interlocal Agreement provide for an out-of-state
exception, Plaintiffs claim without basis in the record sufficient for summary judgment, that the exception is "illusory
and pretextual." FN26 They claim that Defendants' actions constitute economic protectionism and that the Defendants
discriminate by requiring the "Materials" to be delivered to and processed at local privately -owned facilities and by -
hoarding the "Materials and byproducts." As discussed below, Plaintiffs lack standing to raise this argument because
neither Plaintiff has sought, let alone been denied, the right to move the "Materials" out-of-state. Rather, Southern
Waste and Sun simply want to prevent the hauled commercial C & D from ending up in some other District landfill other
than Suns. But, even if Plaintiffs had standing, they have patently failed in their attempt to unearth purported proof for
this argument for summary judgment purposes. Simply stated, Plaintiffs have failed to present any evidence of any
hauler that attempted to take C & D out-of-state and was prevented from doing so by any Defendant. Nor is there any
evidence that the Interlocal Agreement and Plan of Operations somehow preclude waste generated outside of the State
of Florida from being disposed of at facilities *1361 within the District. Nothing on the face of the Plan of Operations, or
from any evidence presented, sufficiently establishes that the financial or administrative burdens imposed an waste
hauled out-of-state will be difficult to meet, or that such requirements were imposed to prevent waste from being
transported out-of-state in a manner different from those haulers who dispose of waste at the Resource Recovery
Facilities in the District in a proper and safe manner.
FN26. Notably, Plaintiffs do not support this argument with any facts in the form of affidavits, declarations, discovery
responses, or depositions to demonstrate that they, or anyone else, have been prevented from utilizing the out-of-state
exception of the Plan of Operations or that the reporting requirements contained in the regulations constitute
differential treatment of interstate interests that burden interstate commerce and benefit local interests. The only
evidence in the record supports that the reporting requirements apply equally to instate and out-of-state haulers. These
reporting requirements are the only way the District ensures that waste is either being disposed of out-of-state or at the
Resource Recovery Facility, landfills or alternative facilities designated in the Plan of Operations, and not at facilities
located elsewhere in Florida,
Moreover, the Plaintiffs have not attempted to transport waste outside of the State of Florida; have never been
prevented by any Defendant from doing so, and have not shown that the reporting requirements included in the Plan of
Operations preclude them from doing so. plaintiffs' arguments dealing with out-of-state reporting requirements have no
bearing on the causation of Plaintiffs' alleged injuries by the District or the City. I conclude that Plaintiffs' arguments that
the District is not entitled to summary judgment if the District "integrally participated" in the acts causing the alleged
violations under § 1983 patently lacks factual basis in the record presented on summary judgement and does not create
a material issue of fact. Moreover, Plaintiffs' other argument (as it pertains to Sun) that Sun is no longer an "alternative
facility" and that there are no current "alternative facilities" because none of the facilities complied with Section 1(c)(1)-
(3), and that the Plan of Operations now only designates the BIC and Central Disposal Landfill to receive C & D is another
patent misreading of the Plan which blatantly ignores the uncontested and undisputed facts of record.
C. Per Se Analysis Applied to the District's Interlocal Agreements and its Plan of Operation
[5] During the course of this litigation, the Supreme Court decided United Haulers Ass'n v. Oneida -Herkimer Solid
Waste Mgmt. Auth., 550 U.S. 330, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007), which has direct impact on this case. In United
Haulers, the Court held that county flow control ordinances that required all waste be delivered to facilities owned and
operated by a state -created public benefit corporation, and that treated all in -state and out-of-state private haulers the
same, do not discriminate for purposes of dormant Commerce Clause. Id, at 1790. The facts in United Haulers were
explicitly distinguished from the facts found in Carbone, which, in contrast to the former, involved a private business
entity receiving the favored local benefits. See Carbone, 511 U.S. at 387, 114 S.Ct. 1677. Thus, under this public -private
distinction a state or municipality will not be subject to per se invalidity if the ordinance requires both local and out-of-
state haulers to deliver all waste to a publically owned facility.
The United States Supreme Court further explicated its decision in United Haulers in Department of Revenue of
Kentucky v. Davis, 553 U.S. 328, 128 S.Ct. 1801, 170 L.Ed.2d 685 (2008). The Court there stated: FN27
FN27. The Supreme Court further clarified the distinction between United Haulers and Carbone by stating: "In so
holding, we distinguished our decision in C & A Carbone, inc. v. Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d
399 (1994), which struck down a very similar ordinance on Commerce Clause grounds. The Carbone ordinance, however,
benefitted a private processing facility, and we found "this difference constitutionally significant" for the reasons
adverted to in the main text. See United Haulers, 550 U.S. at 334,127 S.Ct., at 1790. Although the Carbone dissent
argued that the private facility was "essentially a municipal facility," 511 U.S., at 419, 114 S.Ct. 1677 (opinion of SOUTER,
J.), United Haulers relied on the apparent view of the Carbone majority that the facility was properly characterized as
private, see 550 U.S., at 339-340, 127 S.Ct., at 1793-94." Id. at 128 S.Ct. at 1809 n. 8.
*1362 Our most recent look at the reach of the dormant Commerce Clause came just last Term, in a case decided
independently of the market participation precedents. United Haulers, supra, upheld a "flow control" ordinance
requiring trash haulers to deliver solid waste to a processing plant owned and operated by a public authority in New
York State. We found "[c]ompelling reasons" for "treating [the ordinance] differently from laws favoring particular
private businesses over their competitors." Id., at 342, 127 S.Ct., at 1795. State and local governments that provide
public goods and services on their own, unlike private businesses, are "vested with the responsibility of protecting the
health, safety, and welfare of [their] citizens," ibid., and laws favoring such States and their subdivisions may "be
directed toward any number of legitimate goals unrelated to protectionism," id., at 343, 127 S.Ct., at 1796. That was
true in United Haulers, where the ordinance addressed waste disposal, "both typically and traditionally a local
government function." Id., at 344, 127 S.Ct., at 1796 (quoting United Haulers Assn., Inc. v. Oneida -Herkimer Solid Waste
Management Authority, 261 F.3d 245, 264 (C.A.2 2001) (Calabresi, J., concurring); internal quotation marks omitted).
And if more had been needed to show that New York's object was consequently different from forbidden protectionism,
we pointed out that "the most palpable harm imposed by the ordinances -more expensive trash removal -[was] likely to
fall upon the very people who voted for the laws," rather than out-of-state interests. United Haulers, 550 U.S., at 345,
127 S.Ct. at 1797. Being concerned that a "contrary approach ... would lead to unprecedented and unbounded
interference by the courts with state and local government," id., at 343,127 S.Ct., at 1796, we held that the ordinance
did "not discriminate against interstate commerce for purposes of the dormant Commerce Clause," id., at 343,127 S.Ct.,
at 1795.
It follows a fortiori from United Haulers that Kentucky must prevail. In United Haulers, we explained that a government
function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate
objectives distinct from the simple economic protectionism the Clause abhors. See id., at 343, 127 S.Ct., at 1796 ("Laws
favoring local government ... may be directed toward any number of legitimate goals unrelated to protectionism"); see
also id., at 344, 127 S.Ct., at 1796 (noting that "[w]e should be particularly hesitant to interfere .., under the guise of the
Commerce Clause" where a local government engages in a traditional government function). (Emphasis added).
United Haulers is controlling precedent here as applied to the District's Interlocal Agreement and Plan of Operations.
The District is performing a government function. In performing its governmental function, the lnterlocal Agreements
and Plan of Operation do not favor instate haulers. To the contrary, both explicitly grant an exemption for waste being
transported interstate, while leaving no such exemption for waste being transported intrastate. Consequently, they do
not discriminate against interstate commerce under the per se prong.
Even if it could be shown by Plaintiffs, which it has not, that the District is a "market -participant," FN28 that is, it
somehow *1363 is seeking to favor one private landfill over other private landfills in Broward, because it purportedly
has a financial interest in the Broward Interim Contingency Landfill, and is thereby attempting to affect the local market,
it, as a government entity, is not subject to the restraints of the Commerce Clause. FN29 The Supreme Court reaffirmed
this exception in Davis, as follows:
FN28. For the same reasons related to the District, United Haulers would equally apply to the City of Coral Springs
because its Ordinance and Franchise Agreement does no more than require compliance with the District's Interlocal
Agreement and Plan of Operation. Independent of the approach taken in the Eleventh Circuit's Dania Beach case, the
City, also performing a government function, would not be susceptible to standard Dormant Commerce Clause scrutiny
owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause •
abhors. However, I do not reach the issue of whether the City of Coral Springs is a "market participant." By way of dicta,
find that it is not, but rather functions as a "government regulator."
FN29. Plaintiffs claim that the Defendants have not only discriminated against the interstate market for processing C &
D, but also for the C & D itself. They claim that the City is granting the Landfill, a privately -owned local facility, the
exclusive right to the Materials to the detriment of all consumers in other countries, States and Nations. The record,
'however, is devoid of any evidence regarding the amount of C & D generated in Coral Springs or the District that is
delivered to a landfill versus a recycling facility. Plaintiffs have not submitted any proof that a larger amount of C & D
would be recycled rather than be placed in a landfill in absence of the Interlocal Agreement and Plan of Operations.
Some cases run a different course, however, and an exception covers States that go beyond regulation and themselves
"participat[e] in the market" so as to "exercis[e] the right to favor [their] own citizens over others." [ Hughes v.]
Alexandria Scrap, 426 U.S. [794], at 810, 96 S.Ct. 2488 [49 L.Ed.2d 220 (1976) ]. This "market -participant" exception
reflects a "basic distinction ... between States as market participants and States as market regulators," Reeves [ v. Stake
], 447 U.S. [429], at 436, 100 S.Ct. 2271 [65 L.Ed.2d 244 (1980)1, "[t]here [being] no indication of a constitutional plan to
limit the ability of the States themselves to operate freely in the free market," id., at 437,100 S,Ct. 2271. See also White
v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 208, 103 S.Ct. 1042, 75 L.Ed.2d 1 (1983) ("[W]hen a
state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause").
Thus, in Alexandria Scrap, we found that a state law authorizing state payments to processors of automobile hulks
validly burdened out-of-state processors with more onerous documentation requirements than their in -state
counterparts. Likewise, Reeves accepted South Dakota's policy of giving in -state customers first dibs on cement
produced by a state-owned plant, and White held that a Boston executive order requiring half the workers on city -
financed construction projects to be city residents passed muster.
D. Plaintiffs Standing to Raise Commerce Clause Issues
I return to whether Southern Waste and Sun have standing to challenge the "regime" of regulations at issue. The
standing analysis consists of constitutional and prudential components. "To meet the constitutional standing
requirement, a plaintiff must show (1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3)
that likely will be redressed by a favorable decision." Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th
Cir.2001) (citing Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997); *1364 Lujan v. Defenders
of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992)).
[6] MI conclude that Southern Waste has constitutional standing under the Third Amended Complaint to claim that
both the Franchise Agreement and the City Ordinances violate the Dormant Commerce Clause because: (1) Southern
Waste is legally excluded from collecting commercial C & D as a result of the both the Agreement and Ordinance, and
thereby is legally precluded from competing with Waste Management in Coral Springs for commercial C & D, and (2)
potentially would be subject to a fine or criminal violation for collecting commercial solid waste in violation of the
Agreement and Ordinances. I reach this conclusion with some pause because, as a practical matter, Southern Waste has
chosen to ignore the Franchise Agreement and Ordinance and collect commercial C & D in violation of both and, to date,
apparently has done so without apparent consequence. Nonetheless, I conclude that Southern Waste has sufficiently
demonstrated that it has been, and in the immediate future, can be harmed by the challenged Franchise Agreement and
Ordinance. Otherwise stated, Southern Waste has an injury (lack of legal right to collect commercial C & D) that is
traceable to the Franchise Agreement and Ordinance and which would be remedied if I rule that the Franchise
Agreement and Ordinance violate the Dormant Commerce Clause.
[7] The more difficult question is whether both Plaintiffs meet the prudential standing requirements. The goal of the
prudential standing requirements is to "determine whether each plaintiff 'is a proper party to invoke judicial resolution
of the dispute and the exercise of the court's remedial powers.'" Procter & Gamble, 242 F.3d at 560 (quoting Bender v.
Williamsport Area Sch. Dist., 475 U.S. 534, 106 S.Ct. 1326, 1334 n. 8, 89 L.Ed.2d 501 (1986)).
"These judicially created limits concern whether a plaintiffs grievance arguably falls within the zone of interests
protected by the statutory provision invoked in the suit, whether the complaint raises abstract questions or a
generalized grievance more properly addressed by the legislative branch, and whether the plaintiff is asserting his or her
own legal rights and interests rather than the legal rights and interests of third parties." Procter & Gamble, 242 F.3d at
560.
The key inquiry for prudential standing as to the District's regulations in this case is whether the injury of which the
Plaintiffs complain is "arguably within the zone of interests to be protected" by the dormant Commerce Clause, the
"constitutional guarantee in question" here. Assn of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct.
827, 830, 25 L.Ed.2d 184 (1970). See also Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 97 S.Ct. 599, 603 n. 3, 50
L.Ed.2d 514 (1977) (applying the zone of interests test in the context of the dormant Commerce Clause). The facts of this
case require that I analyze the zone -of -interest question in two parts: I must determine whether plaintiffs have standing
to challenge the flow control ordinances as being facially discriminatory against out-of-state economic interests, or
whether they can merely challenge the District's lnterlocal Agreement and Plan of Operations as being excessively
burdensome to interstate commerce. In this regard, I conclude that Southern Waste and Sun lack prudential standing to
facially challenge the District's lnterlocal Agreement and Plan of Operations as being in violation of the Dormant
Commerce Clause because neither regulation acts to prohibit Southern Waste or Sun from collecting C & ID in any
municipality, nor has the District taken any steps to prevent *1365 Southern Waste and Sun from hauling and processing
C & D from any city in the District. See Seacoast Sanitation, Ltd. v. Broward County, 275 F.Supp.2d 1370,1377-78
(S.D.FIa.2003) (finding no standing where a plaintiff is "utterly unaffected" by the flow control ordinance for the
unincorporated parts of Broward County). Plaintiffs have taken the curious position that not one of their witnesses or
even their "experts" can provide competent or admissible testimony on the question of whether the District has caused
Plaintiffs any injury (Plaintiffs' Opp. at p. 4-6). Even Plaintiffs' president and chief operating officer did not know in his
deposition of any injury.FN30
FN30. Plaintiffs' "expert" Donald Freedland was the former interim executive director of the District. He acknowledged
that cities and haulers of construction and demolition debris in the District had the choice under the Plan of Operations
to send the construction and demolition debris to a number of C & D facilities, including Sun's facilities. Mr. Freedland
acknowledged that the District allows cities to either be open (not have any franchise) or closed (having an exclusive
franchise) for construction and demolition debris collection, and that open cities are not violating any District rule or
regulation.
Plaintiffs posit that the District's documents "facially" discriminate against interstate commerce. But, they support their
claim with two arguments regarding "effects," rather than facial discrimination. Here, the record fails to demonstrate
that in -state economic interests were favored over out-of-state interests. In fact, the opposite is true, the only
preferential treatment that the regulations bestows is to in -District operators, such as Sun, as opposed to other Florida
operators, which "does not constitute discrimination against interstate commerce." See IESI AR Corp. v. Northwest
Arkansas Regional Solid Waste Management District, 433 F.3d at 605.
Significantly, neither Plaintiff can point to any evidence showing that the Interlocal Agreement or Plan of Operations
discriminates against out-of-state interests when each facially provides that C & D collected in the District may be taken
to landfills out-of-state. These Plaintiffs do not ship C & D out-of-state. They have no immediate plans to do so in the
near future. All Sun can claim is that it has customers who purchases materials that it sells to those who then may place
the materials in interstate or foreign commerce. In sum, there is no injury causally connected to any regulation of the
District.
Moreover, the Plaintiffs arguments on standing strain credibility. If Sun is successful as to the District's regulations only
in establishing a violation of the Commerce Clause, then its own receipt of non-commercial solid waste from Coral
Springs, and the combined residential and commercial waste from other District cities under the District's Plan of
Operations, would be implicated as being in violation of the Commerce Clause. Sun is not before this Court encouraging
more competition from out-of-state or intra-state competitors. Sun simply cannot have it both ways.FN31
FN31. Plaintiffs contend that "[t]he City's actions are precluding materials generated in the City from being processed
out of the. State" because "the City is using its leverage in the collection and disposal markets to exert a regulatory effect
in the processing market by requiring Waste Management to dispose of the materials at the processing facilities
designated in the Plan, which are only located in Broward County." This contention is not supported by the record on
summary judgment. Just because the Plaintiffs' expert may say so, it does not make it so or create a material issue of
fact. There is nothing in the Franchise Agreement which prevents the delivery of solid waste, including C & D collected in
Coral Springs, to a location outside the State of Florida.
*1366 I find no material facts in dispute regarding Sun's facilities. FN32 Sun facilities have been designated in the Plan of
Operations as alternative facilities for each and every one of the Revisions to the Plan of Operations in effect during this
litigation. Revisions Twelve through Fourteen listed two Sun facilities located in Pompano Beach and Dania Beach as
Alternative Facilities for Unprocessable Waste. Specifically, under Revision 13 of the Plan of Operations which was
adopted in December 2006 (and prior versions from 1999 onward), C & D collected in the District, including Coral
Springs, could be delivered to the geographically designated landfills, specially listed alternative facilities, and any other
licensed facility in Florida, for facilities outside of Florida. Under Revision 14 of the Plan of Operations (adopted on
January 17, 2008), C & D collected in the District, including Coral Springs, could be delivered to the geographically
designated landfill, specifically listed alternative facilities, any other licensed facility in Broward County, or facilities
outside of Florida; this included Sun's facilities in Dania and Pompano Beach. Moreover, under Revision 15 of the Plan of
operations (adopted in June 2008), C & D collected in the District, including Coral Springs, can be delivered to the
geographically designated landfill, specifically listed alternative facilities or facilities outside of Florida.FN33 I
reemphasize that the Plan of Operation specifically provides that waste "shown to be destined for transportation to any
destination outside the State of Florida" is excluded from the limitations contained in the Plan of Operations. This out-
of-state provision removes this case from Carbone and Coastal Carting.
FN32. Plaintiffs contend that no alternative facilities exist under the Plan of Operations because none agreed to the
conditions which set forth reporting requirements and inspections for alternative facilities. The record is devoid of any
evidence that an alternative facility has been de -listed or threatened with de -listing for non-compliance. Rather, the
evidence establishes without material dispute that all the alternative facilities listed in the Plan of Operations, including
Sun's facilities, continue to be and have always been approved facilities for the processing and disposal of construction
and demolition debris.
FN33. The current revision of the Plan of Operations goes further and designated Sun # 1 (Pompano Beach), Sun # 2
(Dania Beach), Sun # 7 (Deerfield Beach), and Sun # 8 (Deerfield Beach) as Alternative Facilities for Unprocessable Waste
and C & D.
The fact that the District's regulations may discriminate intrastate does not change the result (assuming the Plaintiffs
had standing even to raise the issue given that neither has facilities, or desires to send C & D to facilities, instate, or that
any instate hauler desires to send C & D to Broward).FN34 Courts have consistently held that flow control ordinances
which prohibit intrastate disposal of waste but allow interstate disposal of waste do not discriminate against interstate
commerce. See IESI AR Corp. v. N.W. Ark. Reg'I Solid Waste Mgmt. District, 433 F.3d 600, 602-03 (8th Cir.2006); Ben
Oehrleins v. Hennepin County, 115 F.3d 1372, 1387 (8th Cir.1997); Waste Management of Michigan v. Ingham County,
941 F.Supp. 656, 666 (W.D.Mich.1996); Vince Refuse Service, Inc. v. Clark County Solid Waste Management District,
1995 WL 253121, *9 (S.D.Ohio March 7, 1995).
FN34. Nothing in the District's regulations prohibits, for instance, waste collected in the District from being transported
through any other county in Florida. Here, either the C & D, or its recycled components, can be placed in interstate
commerce.
Here, the only preference is granted to designated facilities, like Sun, as a local operator. This may create a monopoly at
the local level, but as long as the waste is allowed to flow freely in or out of the *1367 State, there is no discrimination
against interstate commerce. It is simply not the kind of "economic protectionism" that the Commerce Clause is
intended to prevent. A purely intrastate flow control regulation may be "protectionist" but it is only so at the local level.
If anything, such a flow control regulation treats interstate commerce more favorably than intrastate commerce.
While Southern Waste and Sun claim that Sun's customers ship the C & D in interstate and foreign commerce, such
tenuous"indirect" connections do not place Plaintiffs within the protected zone -of -interest required to have the
prudential standing necessary to bring this action. The Plaintiffs are merely local companies which do not ship, or
contract to with others to ship, out-of-state much Tess out of the United States to foreign countries. Nothing prevents
Southern Waste or Sun from disposing of the C & D out-of-state under the District's Plan of Operations and Interlocal
Agreement, either before or after the processing. There is no claim that Sun owns facilities in other counties and is being
precluded from receiving solid waste as a result of the District rules and regulations. As such, I decline to expand the
zone -of -interest protected by the Commerce Clause to purely intra-county (let alone intrastate) disputes. I hold that
because Southern Waste and Sun's injuries are not even "marginally related" to the interests the Commerce Clause
seeks to protect and safeguard, they lack prudential standing to bring the federal constitutional claims at issue.
E. Standing to Claim an Excessive Burden on Interstate Commerce
next consider whether Plaintiffs nonetheless have standing to challenge the flow control ordinances on the basis of the
claim that they excessively burden interstate commerce. Here, Plaintiffs are not directly involved in interstate
commerce. Nothing in the record on summaryjudgment creates any issue of material fact on this point. Moreover,
Plaintiffs point to no direct contracts with interstate customers which are burdened by the District's regulations.
Accordingly, I conclude that Plaintiffs do not meet the zone -of -interests test in this regard as well, and thus lack standing
to challenge the District's regulations as to their burden on interstate commerce.
F. Pike Balancing Test
[8]rpt
While I conclude that the Plaintiffs lack standing as to the District regulations, 1 address the merits in any event
under the Pike analysis in the event I am wrong under both prongs of the standing issue. Although the Interlocal
Agreement and Plan of Operation do not overtly discriminate against interstate commerce they may still violate the
Commerce Clause if their incidental burdens on interstate commerce outweigh their benefits conferred upon the
locality. Pike, 397 U.S. at 142, 90 S.Ct. 844. Plaintiffs bear the initial burden of demonstrating that the Plan of Operations
and the Interlocal Agreement have a discriminatory effect on interstate commerce. Cherry Hill Vineyard, I_L.0 v. Baldacci,
505 F.3d 28, 33 (1st Cir.2007) ("[t]he initial burden of [proving] discrimination rests with the challenger").FN35
• Plaintiffs*1368 have failed to meet their initial burden.
FN35. In Cherry Hill, the First Circuit held that the plaintiffs had not proffered any evidence that the challenged laws had
any discriminatory effect on interstate commerce and that to maintain their claim they were required "to submit some
probative evidence of adverse impact." Id. at 505 F.3d at 36. Here, Plaintiffs have failed to sufficiently demonstrate how
local economic actors are favored by the legislation, and haw out-of-state actors are burdened by the legislation.
Plaintiffs have failed to demonstrate how the District's regulations discriminates among similarly situated in -state and
out-of-state interests, or how those regulations have the effect of providing a competitive advantage to in -state vis-a-vis
similarly situated out-of-state interests. As explained at length in this Order, there is no evidence that any hauler has
been prevented from hauling construction and demolition debris generated in Coral Springs outside the State of Florida,
or that any out-of-state facility has been denied access to construction and demolition debris from Coral Springs. Nor is
there any evidence of any increased costs or fees imposed on out-of-state interests by Defendants.
Here, Plaintiffs do not complain of any direct infringement. Rather, Plaintiffs' Dormant Commerce Clause arguments
(presumably under the Pike analysis) are based on the allegation of the "incidental burden" that the materials they deal
in are "ultimately bound for interstate and/or foreign commerce," and that the material is delivered "to Southern Waste
for further delivery to Sun Recycling, where it is processed and shipped directly or indirectly, used in interstate and/or
foreign commerce." (Third Am. Comp!. 'jl'JI 9, 17).
Plaintiffs posit that the City Ordinance, the Franchise Agreement, the Plan of Operations and the Interlace! Agreement
have a "practical effect" on interstate commerce by prohibiting "the Materials" from being processed at any facility
other than the privately -owned, local facilities designated in the Plan; and by prohibiting the Materials from entering the
stream of interstate commerce both before and after they are processed. Plaintiffs claim that the Defendants
accomplish the alleged discrimination in three ways: (1) the City of Coral Springs locks up the collection of the Materials
though implementation and enforcement of the Ordinance; (2) Waste Management then collects the locked -up
materials and delivers them to the facility designated in the Plan -the Landfill -which is privately -owned by Waste
Management and located in Broward County; and (3) the District drafted and continues to modify the Plan of Operations
to ensure that the Materials go to the specifically designated facilities rather than the "Alternative Facilities" or to out-
of-state facilities, and polices the activities of the City and Waste Management to ensure compliance with the goals of
the Interlocal Agreement and the terms of the Plan of Operations. I conclude that none of these arguments have legal
merit.
First, the record on summary judgment does not support Plaintiffs' contentions. Plaintiffs have made no effort to show
that the amount of recyclable materials generated in the City or the District, which may enter interstate commerce,
were reduced as a result of the Exclusive Franchise Agreement, the Ordinance, Interloca! Agreement and/or the Plan of
Operations.
Second, even though the Plaintiffs refer to the "Regime" of interrelated regulation, the District does not and cannot
require the City or any municipality to have an exclusive franchise agreement. Fla. Stat. § 403.706(3) (stating that
"[n)othing in a count's solid waste management or recycling program shall affect the authority of a municipality to
franchise or otherwise provide for the collection of solid waste generated within the boundaries of the municipality.").
Thus, each city may independently decide whether to have a franchise and which aspects of the waste system to include
in such franchises. The Franchise Agreement here is simply not interrelated to any policy or rule of the District.
Third, there is no discriminatory effect here because there is no indication that instate economic interests were favored
over out-of-state interests. The Plaintiffs have failed to establish for summary judgment purposes that the intercounty
waste restrictions either facially or in practical *1369 effect discriminate against interstate or foreign commerce. Even at
best, if Plaintiffs could establish that the flow control regulations were protectionist as to other waste processing
facilities within the state, it only establishes a discrimination against intrastate commerce which is not covered by the
Dormant Commerce Clause.
Fourth, Plaintiffs claim that the Court should consider incidental burden in the aggregate. This approach has been
properly rejected in Quality Compliance Services v. Dougherty County, 553 F.Supp.2d 1374, 1379 (M.D.Georgia 2008)
where the plaintiff's expert (the very same expert Plaintiffs have in this case) offered an opinion of an aggregate theory
of harm -stating that if similar flow control legislation were implemented more widely, the national market for waste
disposal would be severely interfered with. The court there explained the precedent on the issue and I adopt and apply
it here without further comment or analysis.
Fifth, the record is devoid of evidence that the Interlocal Agreement and Plan of Operations have the effect of increasing
the cost associated with the processing or recycling of Commercial C & D in the District or in interstate or foreign
commerce. East Coast Recycling v. City of Port St. Lucie, 234 F.Supp.2d 1259, 1266 (S.D.F1a.2002).
In the event 1 am wrong on my analysis that the record on summary judgment fails to sufficiently establish incidental
burdens on interstate or foreign commerce, I now address, again applying summary judgment standards, the Pike
balancing test to determine whether the so-called "Regime" excessively burden interstate commerce. An "evenhanded"
ordinance, i.e., one that does not facially discriminate against out-of-state interests and only incidentally affects
interstate commerce, will be upheld unless the burden it imposes on interstate commerce is "clearly excessive in
relation to the putative local benefits" of the ordinance. Pike, 90 S.Ct. at 847. To make this assessment, I consider the
nature of the local interest and whether alternative means could achieve that interest with less impact on interstate
commerce: "If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the
burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could
be promoted as well with a lesser impact on interstate activities." Id.
first look for a legitimate public purpose that defendants intended to advance by implementing flow control. The
Supreme Court has expressly found that waste collection, disposal and management are core traditional functions of
local government. United Haulers, 550 U.S. at 344, 127 S.Ct. 1786. Defendants indeed have a legitimate local purpose: to
ensure the economic viability of landfills within the District and to protect and safeguard the public health and welfare.
See U & 1 Sanitation v. City of Columbus, 205 F.3d 1063, 1070 (8th Cir.2000) (recognizing economic viability as a
legitimate local purpose in the context of a waste flow control ordinance). Indeed, the regulations give Broward County
a convenient and efficient way to finance their integrated package of waste disposal service. And, "revenue generation,"
is a cognizable benefit for the purposes of the Pike test. United Haulers, 550 U.S. at 346, 127 S.Ct. 1786. I fail to find in
this record that the District can promote the local benefits with a lesser impact on interstate commerce, particularly
because the District directly allows for interstate hauling.
Next, 1 identify the burden imposed on interstate commerce. To succeed in a challenge to a regulation under the Pike
balancing test, the challenging party must show that the regulation has "a disparate *1370 impact on interstate
commerce." Automated Salvage Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 75 (2d Cir.1998). The
"incidental burdens to which Pike refers are the burdens on interstate commerce that exceed the burdens on intrastate
commerce." Id. (internal quotation and citation omitted). "Where a regulation does not have this disparate impact on
interstate commerce, then we must conclude that ... [it] has not imposed any incidental burdens on interstate
commerce" and, therefore, that it passes the Pike test. Id, (internal quotation and citation omitted).
Even if I assumed that the an unspecified amount of recycled materials do not end up in interstate commerce, I conclude
that such an effect is slight and the means chosen to accomplish the putative local benefits are reasonably effective and
not clearly excessive in relation to the legitimate goals of long-term solid waste disposal planning. Otherwise stated, safe
and sanitary management of solid waste generated within the District which is conducted on a self-financing basis
constitutes the kind of local benefits which are not clearly exceeded by any incidental burden on interstate commerce.
This is particularly true in Florida where, since the 1970's, the Florida Legislature has issued a mandate requiring
urbanized counties to prepare resource recovery and solid waste plans. See Florida Statutes § 403.706 (as then in
effect). Here, the Interlocal Agreement and the Plan of Operations are critical components of Broward Country's
comprehensive plan for long-term management of the County's solid waste by providing for a reliable solid waste
management system that has, in turn, met the goals established by the Florida Comprehensive Plan adopted by the
Florida Legislature in 1985 to deal with waste management, among other components.
But, here, I further conclude from the record on summary judgment that the flow control regulations do not have a
disparate impact on interstate commerce, nor does any evidence of record materially establish that they do;
consequently, plaintiffs fail in their attempt to show that the ordinances do not pass the Pike test. Even if Plaintiffs can
point to a legitimate "disparate burden," which they have not, they have failed to demonstrate that the measures
impose a burden on interstate commerce that is qualitatively or quantitatively different from that imposed on intrastate
commerce; that is, that there are no incidental burdens on interstate commerce which exceed the burdens on intrastate
commerce, and burdens that are local or intrastate in nature are not relevant for Commerce Clause purposes because
they do not affect interstate commerce.
Plaintiffs further appear to argue that interstate commerce is being burdened because they are being prevented from
introducing recycled C & D into the stream of commerce. But, Plaintiffs do not ship any materials outside the State of
Florida, and they do not have any customers outside the State of Florida. Plaintiffs have made no effort to quantify the
alleged burden of materials being introduced into commerce.FN36 The only evidence of an interstate burden is the
effect on Sun's customers who ship interstate. Sun's theory is obscure. Sun appears to arguethat the flow control
ordinances, because they will raise Sun's costs within the District and *1371 thereby make Sun's sales to customers who
ship out-of-state relatively less competitive, impose a burden on Sun's interstate commerce by affecting the portion of
business that may involve areas beyond Florida. Furthermore, even if i assume for summary judgment purposes that the
District's regulations have, in some manner, the effect of shifting some business away from plaintiffs, as the ordinances
increase their costs and make them relatively less competitive, this result does not mean that the ordinances burden
interstate commerce.
FN36. Plaintiffs claim, without record support, that the Plan of Operations requires the Materials to be taken to the
Landfill. This assertion is contradicted by every single witness who has testified that haulers of C & D have the option of
where to dispose of C & D collected in the District, including from Coral Springs, and those options include numerous
recycling facilities, such as Suns.
In sum, Plaintiffs have been unable to sufficiently articulate, let alone support for summary judgment purposes, that the
Franchise Agreement either alone, or coupled with the District's Interlocal Agreement and Plan of Operations, imposes
any extra burden on out-of-state companies, or on local companies engaged in interstate commerce. In light of this, I
conclude that neither the City nor the District, either alone or in combination, have imposed any incidental burdens on
interstate commerce that are clearly excessive in relation to the putative local benefits articulated by both the City,
Waste Management and the District in their briefs on summary judgment; namely, that it is not in excess in relation to
the purpose of developing and implementing jointly a comprehensive, environmentally advanced, solid waste disposal
and resource recovery system to process solid waste generated within the District.
For the reasons stated, it is ORDERED:
1. The motions for summary judgment by the Defendants Coral Springs (other than on its counterclaim) [DE 275]; Waste
Management [DE 281] and the District [DE 288] are GRANTED.
2. The motion for summary judgment by the Plaintiffs Southern Waste and Sun [DE 292] is DENIED.
3. Coral Springs' motion to strike [DE 235] is DENIED AS MOOT.
4, Waste Management's motion to strike Plaintiffs' statement of material facts [DE 337] is DENIED.
5. Waste Management's motions to strike the affidavits of Charles Lomangino [DE 338] and Anthony Lomangino [DE
339] are GRANTED.
6. Dismissal of Count III of the Second Amended Complaint is now GRANTED WITH PREJUDICE.
7. Final judgment shall be entered pursuant to Fed.R.Civ.P. 54(b) for the Defendants and against the Plaintiffs on [DE
275, 281 and 288].
8. The City's motion for summary judgment on its counterclaim [DE 275] is DENIED. A trial on the City's counterclaim
shall be held in abeyance pending an appeal of the final judgment on summary judgments.
9. This case is ADMINISTRATIVELY CLOSED pending a final determination on any appeal. It may be reopened as to the
counterclaim by motion of the City or the Plaintiffs.
S.D.Fla.,2010.
Southern Waste Systems, LLC v. The City of Coral Springs, Florida
687 F.Supp.2d 1342
Motions, Pleadings and Filings (Back to top)
• 2009 WL 4703508 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Reply to
Plaintiffs' Opposition to Wmif's Motion for Summary Judgment (Oct. 19, 2009) lee Original Image of this Document (PDF)
• 2009 WL 4703509 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District,
Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment (Oct. 19, 2009) IS Original Image of
this Document (PDF)
• 2009 WL 4703510 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems. LLC and Sun Recycling, LLC's
Joint Reply to Defendants' Opposition to Plaintiffs Motion for Partial Summary Judgment (Oct. 19, 2009) g Original
Image of this Document (PDF)
• 2009 WL 4703507 (Trial Motion, Memorandum and Affidavit) Defendant/Counter Plaintiff the City of Coral Springs,
Florida's Reply to Southern Waste Systems, LLC and Sun Recycling, LLC's Memorandum of Law in Opposition to Coral
Springs' Motion for Summary Judgment (Oct. 7, 2009)g Original Image of this Document (PDF)
• 2009 WL 4703503 (Tria! Motion, Memorandum and Affidavit) Southern Waste Systems, LLC and Sun Recycling, LLC's
Joint Opposition to Defendant Broward Solid Waste Disposal District's Motion for Summary Judgment (Including
Memorandum in Support) (Sep. 25, 2009) 11 Original Image of this Document (PDF)
• 2009 WL 4703504 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems. LLC and Sun Recycling, LLC's
Opposition to Defendant Waste Management Inc. of Florida's Motion for Summary Judgment, (Incorporating
Memorandum in Support) (Sep. 25, 2009)g Original Image of this Document (PDF)
• 2009 WL 4703505 (Tria! Motion, Memorandum and Affidavit) Southern Waste Systems, LLC and Sun Recycling, LLC's
Opposition to Defendant the City of Coral Springs' Motion for Summary Judgment, (Incorporating Memorandum in
Support) (Sep. 25, 2009) B Original Image of this Document (PDF)
• 2009 WL 4703506 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's
Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Sep. 25, 2009) F. Original Image of this
Document (PDF)
• 2009 WL 4703500 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Motion
for Summary Judgment and Incorporated Memorandum of Law (Sep. 9, 2009) g Original Image of this Document (PDF)
• 2009 WL 4703501 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District,
Memorandum of Law in Support of Its Motion for SummaryJudgment (Sep. 9, 2009)15Original Image of this Document
(PDF)
• 2009 WL 4703502 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems. LLC and Sun Recycling. LLC's
Motion for Partial Summary Judgment (incorporating Memorandum in Support) (Sep. 9, 2009) EC
Original Image of this
Document (PDF)
• 2009 WL 4703499 (Trial Motion, Memorandum and Affidavit) Defendant/Counter Plaintiff the City of Coral Springs,
Florida's Memorandum of Law in Support of Motion for Summary Judgment (Sep. 8, 2009)1 Original Image of this
Document (PDF)
• 2009 WL 2334014 (Trial Motion, Memorandum and Affidavit) Waste Management's Reply in Support of Its Motion for
Reconsideration of Order Compelling Discovery of Confidential Financial Information (May 5, 2009)1 Original Image of
this Document (PDF)
• 2009 WL 2334013 (Trial Motion, Memorandum and Affidavit) Defendants' Reply to Plaintiffs' Opposition to Motion to
Strike Expert Report Addendum (May 1, 2009) g Original Image of this Document (PDF)
• 2009 WL 1613849 (Trial Motion, Memorandum and Affidavit) Response to Waste Management's Motion for
Reconsideration of Order Compelling Discovery of Confidential .Financial Information (Apr. 28, 2009)g Original Image of
this Document (PDF)
• 2009 WL 1613848 (Trial Motion, Memorandum and Affidavit) Opposition to Motion to Strike Expert Report Addendum
(Apr. 24, 2009) faOriginal Image of this Document (PDF)
• 2009 WL 2207015 (Partial Expert Testimony) Deposition of Mark Berkman (Apr.15, 2009) yy Original Image of this
Document (PDF)
• 2009 WL 1613847 (Trial Motion, Memorandum and Affidavit) Waste Management's Motion for Reconsideration of
Order Compelling Discovery of Confidential Financial Information (Apr. 14, 2009) S
Original Image of this Document
(PDF)
• 2009 WL 1613846 (Trial Motion, Memorandum and Affidavit) Defendants' Motion to Strike or Alternatively Exclude
Addendum to the Expert Report of Mark P. Berkman and Incorporated Memorandum of Law (Apr. 13, 2009) . Original
Image of this Document (PDF)
• 2009 WL 1613845 (Trial Motion, Memorandum and Affidavit) Waste Management Inc. of Florida's Response to
Plaintiffs' Motion to Compel Testimony of Corporate Representative(s) and Motion for Protective Order (Mar. 27, 2009)
Original Image of this Document (PDF)
• 2009 WL 1613844 (Trial Motion, Memorandum and Affidavit) Motion to Compel Testimony of Corporate
Representative(s) of Waste Management Inc. Of Florida (Mar. 24, 2009) Original Image of this Document (PDF)
• 2009 WL 1574151 (Expert Report and Affidavit) (Report or Affidavit of Harvey W. Gershman) (Feb. 28, 2009)0 Original
Image of this Document with Appendix (PDF)
• 2008 WL 2279233 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. Of Florida's Motion
to Dismiss Plaintiffs' Third Amended Complaint, Alternative Motion for a More Definite Statement, and Incorporated
Memorandum of Law (Apr. 21, 2008) 5 Original Image of this Document (PDF)
• 2008 WL 2279232 (Trial Pleading) Third Amended Complaint (Apr. 2, 2008)M Original Image of this Document (PDF)
• 2008 WL 2279230 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC and Sun Recycling, LLC's
Reply to Waste Management Inc. of Florida's Memorandum in Opposition to Motion to Reconsider (Mar, 3, 2008)
11 Original Image of this Document (PDF)
• 2008 WL 2279231(Trial Motion, Memorandum and Affidavit) Plaintiffs' Reply to Broward Solid Waste Disposal
Districts Opposition to Motion to Reconsider Dismissal of Count III (Mar. 3, 2008) Original Image of this Document
(PDF)
• 2008 WL 972045 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District,
Memorandum of Law in Opposition to Plaintiffs' Motion to Reconsider Dismissal of Count Ili (Feb. 25, 2008)1 Original
Image of this Document (PDF)
• 2008 WL 972046 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's
Memorandum in Response to Plaintiffs' Motion to Reconsider Dismissal of Count III and Notice of Joinder in the Broward
Solid Waste Disposal District's Response (Feb. 25, 2008)S Original Image of this Document (PDF)
• 2008 WL 972044 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Motion to Reconsider Dismissal of Count III
(Feb. 7, 2008)1 Original Image of this Document with Appendix (PDF)
• 2008 WL 972043 (Trial Motion, Memorandum and Affidavit) Waste Management Inc. of Florida's Reply to Plaintiffs'
Response to Waste Management Inc. of Florida's Motion for Entry of Protective Order for Confidentiality (Jan. 11, 2008)
Original Image of this Document (PDF)
• 2007 WL 5079205 (Trial Motion, Memorandum and Affidavit) Memorandum of Law in Response to Waste
Management Inc. of Florida's Motion for Entry of Protective Order for Confidentiality and Incorporated Memorandum of
Law (Dec. 21, 2007) Original Image of this Document (PDF)
• 2007 WL 5079203 (Trial. Motion, Memorandum and Affidavit) Waste Management Inc. of Horida's Motion for Entry of
Protective Order for Confidentiality and Incorporated Memorandum of Law (Dec, 14, 2007)1i Original Image of this
Document (PDF)
• 2007 WL 5079204 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District,
Supplemental Memorandum of Law Regarding Subject Matter Jurisdiction (Dec. 14, 2007) A Original Image of this
Document (PDF)
• 2007 WL 5082609 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC and Sun Recycling, LLC's
Combined Response to the Court's Interim Order On Defendant's Motion to Dismiss Count Ili of the Second Amended
Complaint; Requiring Submission (Dec. 14, 2007) ES Original image of this Document (PDF)
• 2007 WL 3310366 (Trial Motion, Memorandum and Affidavit) Defendant's Broward Soid Waste Disposal District. Reply
Memorandum of Law in Further Support of Its Motion to Dismiss Count III of the Second Amended Complaint (Sep. 24,
2007) 1 Original Image of this Document (PDF)
• 2007 WL 3310365 (Trial Motion, Memorandum and Affidavit) Opposition to Defendant Broward Solid Waste Disposal
District's Motion to Dismiss Count 111 of the Second Amended Complaint (Sep, 4, 2007) u Original Image of this
Document (PDF)
• 2007 WL 5079209 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District,
Memorandum of Law in Support of its Motion to Dismiss Count III of the Second Amended Complaint (Jul. 30, 2007)
Original Image of this Document (PDF)
• 2007 WL 5082610 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District,
Motion to Dismiss Count 111 of the Second Amended Complaint (Jul. 30, 2007) E Original Image of this Document (PDF)
• 2007 WL 1986772 (Trial Pleading) Second Amended Complaint (May 30, 2007) f n Original Image of this Document
(PDF)
• 2007 WL 1985956 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc, of Florida's
Memorandum in Response to Southern Waste Systems, LLC's Supplemental Memorandum (May 8, 2007)1 Original
Image of this Document (PDF)
• 2007 WL 1985953 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC's Supplemental
Memorandum (May 1, 2007) Original Image of this Document (PDF)
• 2007 WL 5079208 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Reply
Memorandum in Support of Motion to Dismiss Amended Complaint (Feb. 28, 2007)S Original Image of this Document
(PDF)
• 2007 WL 5079207 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC's Opposition to Defendant
Waste Management Inc. of Florida's Motion to Dismiss (Feb. 8, 2007) . Original Image of this Document (PDF)
• 2007 WL 5079206 (Trial Motion, Memorandum and Affidavit) Joint Motion to Amend Order Setting Pretrial and Trial
Dates (Feb. 7, 2007) Original Image of this Document (PDF)
• 2007 WL 620794 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Motion to
Dismiss Amended Complaint, Motion for More Definite Statement and Incorporated Memorandum of Law (Jan. 8, 2007)
Original image of this Document (PDF)
Exhibit(s) Available
• 2007 WL 620795 (Trial Filing) Joint Scheduling Report (Jan. 8, 2007)N Original Image of this Document (PDF)
• 2007 WL 6943685 (Exhibit) Franchise Agreement for Solid Waste Collection and Disposal Services (Jan. 8, 2007)
Original Image of this Document (PDF)
• 2006 WL 4035480 (Trial Pleading) Amended Complaint (Dec. 1, 2006) 8 Original Image of this Document (PDF)
• 2006 WL 3850905 (Trial Motion, Memorandum and Affidavit) Defendant City of Coral Springs' Response to Plaintiff's
Unopposed Motion to Dismiss Party Defendants and Memorandum of Law in Support (Nov. 27, 2006) N Original Image
of this Document (PDF)
• 2006 WL 5534407 (Trial Motion, Memorandum and Affidavit) Unopposed Motion and Memorandum to Dismiss Party
Defendants State of Florida and Florida Department of Environmental Protection Without Prejudice (Nov. 16, 2006)
Original image of this Document (PDF)
• 2006 WL 3850903 (Trial Motion, Memorandum and Affidavit) Defendant City of Cora! Springs' Motion to Dismiss
Plaintiff's Complaint and Memorandum of Law in Support (Nov. 2, 2006) N Original Image of this Document (PDF)
• 2006 WL 3850904 (Trial Motion, Memorandum and Affidavit) Defendants, State of Florida and Florida Department of
Environmental Protection, Motion to Dismiss Complaint for Declaratory and Injunctive Relief and Incorporated
Memorandum of Law (Nov. 2, 2006)8 Original Image of this Document (PDF)
• 2006 WL 3668242 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Motion
to Dismiss Complaint for Declaratory and Injunctive Relief and Incorporated Memorandum of Law (Oct. 30, 2006)
Original Image of this Document (PDF)
• 0:06cv61448 (Docket) (Sep. 25, 2006)
• 2006 WL 3033279 (Trial Pleading) Complaint for Declardatory and Injunctive Relief (Sep. 22, 2006)8 Original Image of
this Document (PDF)
• 2006 WL 6282357 (Expert Report and Affidavit) Expert Report of Mark P Berkman (2006) 8 Original Image of this
Document (PDF)
• 2009 WL 3170433 (Court -Filed Expert Resume) Expert Resume of Mark P. Berkman (Mar. 24, 2009) T3 Original Image
of this Document (PDF)
Judges, Attorneys and Experts (Back to top)
Judges I Attorneys I Experts
Judges
0 Gold, Hon. Alan S.
United States District Court, Southern Florida
Florida
Litigation History Report I Judicial Motion Report I Judicial Reversal Report I Judicial Expert Challenge Report I Profiler
Attorneys
Attorneys for Defendant
lei Ezrol, Kerry L.
Fort Lauderdale, Florida
Litigation History Report I Profiler
i7 Glazer, Ari Jonathan
Fort Lauderdale, Florida
Litigation History Report I Profiler
El Hole, Brian K.
Fort Lauderdale, Florida
Litigation History Report I Profiler
LI Miller, Katherine Howland
Fort Lauderdale, Florida
Litigation History Report I Profiler
II Royal, Erika R.
Fort Lauderdale, Florida
Litigation History Report J Profiler
Attorneys for Plaintiff
Q Burns, Guy M.
Tampa, Florida
Litigation History Report I Profiler
I7 Elsberry, Michael V.
Orlando, Florida
Litigation History Report 1 Profiler
p Grossman, Stuart Z.
Coral Gables, Florida
Litigation History Report I Profiler
lI Sorrell, Drew
Orlando, Florida
Litigation History Report I Profiler
III Young, Terry C.
Orlando, Florida
Litigation History Report I Profiler
Experts
El Berkman, Mark P., PH.D.
CERTIFIED PUBLIC ACCOUNTANT
San Francisco, CA
Expert Evaluator Report I Expert Challenge Report I Expert Testimony J Resume 1 Profiler
El Berkman, Mark P.
ENVIRONMENTAL EXPERT/ PATENT/PATENT EXAMINER
Berkeley, CA 94710
Resume f Profiler
EI Freedland, Donald
EMERGENCY MANAGEMENT COORDINATOR
FL
Expert Evaluator Report I Profiler
1:1 Gershman, Harvey
Construction & Architecture, Environmental / Demolition,Environmental
Fairfax, VA 22031-4620
Expert Evaluator Report I Expert Testimony j Profiler
END OF DOCUMENT
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arta
GI.,ENN MARCOS CARLOS A. MICOYA
Chief Procurement Officer City Manager
ADDENDUM NO. 2
RFQ No. 222246 July 30, 2010
Request for Qualifications (RFQ) for Commercial Solid Waste Hauling Services
TO: ALL PROSPECTIVE PROPOSERS:
The following changes, additions, clarifications, and deletions amend the RFQ documents of the above captioned
RFQ, and shall become an integral part of the Contract Documents. The remaining provisions are now in effect and
remain unchanged. Please note the contents herein and reflect same on the documents you have on hand.
The closing date and time for this RFQ has been extended. The new closing date and time is:
• Monday, August 9, 2010.at 2:00 p.m.
ALL OTHER TERMS AND CONDITIONS OF THE IFB REMAIN THE SAME.
GM/L yg
c: Bid File
Glenn Marcos, CPP PPB, FCPM, FCPA
Director/Chief Procurement Officer
Page I
GLENN MARCOS CARLOS A. MJGOY.A
Chief Procurement Officer City Manager
ADDENDUM NO. 1
RFQ No. 222246 July 22, 2010
Request for Qualifications (RFQ) for Commercial Solid Waste Hauling Services
TO: ALL PROSPECTIVE PROPOSERS:
The following changes, additions, clarifications, and deletions amend the RFQ documents of the above captioned
RFQ, and shall become an integral part of the Contract Documents. The remaining provisions are now in effect and
remain unchanged, Please note the contents herein and reflect same on the documents you have on hand.
The closing date and time for this RFQ has been extended. The new closing date and time is:
• Monday, August 2, 2010 at 2:00 p.m.
ALL OTHER TERMS AND CONDITIONS OF THE IFS REMAIN THE SAME.
GM/tlyg
c: Bid File
Sincerely,
Page 1
G 82
PO, CPPB, FCPM, FCPA
curement Officer
City of Miami
Request for
Qualifications (RFQ)
Purchasing Department
Glenn Marcos, CPPO, CPPB, Director/Chief Procurement Officer
Miami Riverside Center
444 SW 2"d Avenue, 61h Floor
Miami, Florida 33130
Web Site Address: http:llmiamigov.com/procurement
RFQ Number:
Title:
Issue Date/Time:
RFQ Closing Date/Time:
Pre -Bid Conference:
Pre -Bid Date/Time:
Pre -Bid Location:
Deadline for Request for Clarification:
Buyer:
Hard Copy Submittal Location:
Buyer E-Mail Address:
Buyer Facsimile:
222246
Request for Qualifications for
Commercial Solid Waste Hauling
Services
01-JUL-2010
07/26/2010 @ 14:00:00
None
Tuesday, July 13, 2010 at 4:00 PM
Gonzalez, Yusbel
City of Miami City Clerk
3500 Pan American Drive
Miami FL 33133 US
YGonzalez@ci.miami.fl.us
(305) 400-5104
Page 1 of 34
Certification Statement
Please quote on this form, if applicable, net prices for the item(s) listed. Return signed original and
retain a copy for your files. Prices should include all costs, including transportation to destination. The
City reserves the right to accept or reject all or any part of this submission. Prices should be firm for a
minimum of 180 days following the time set for closing of the submissions.
In the event of errors in extension of totals, the unit prices shall govern in determining the quoted
prices.
We (I) certify that we have read your solicitation, completed the necessary documents., and propose to
furnish and deliver, F.O.B. DESTINATION, the items or services specified herein.
The undersigned hereby certifies that neither the contractual party nor any of its principal owners or
personnel have been convicted of any of the violations, or debarred or suspended as set in section
18-107 or Ordinance No. 12271.
All exceptions to this submission have been documented in the section below (refer to paragraph and
section).
EXCEPTIONS:
We (I) certify that any and all information contained in this submission is true; and we (I) further certify
that this submission is made without prior understanding, agreement, or connection with any
corporation, firm, or person submitting a submission for the same materials, supplies, equipment, or
service, and is in all respects fair and without collusion or fraud. We (I) agree to abide by all terms and
conditions of this solicitation and certify that I am authorized to sign this submission for the submitter.
Please print the following and sign your name:
SUPPLIER NAME.
ADDRESS •
PHONE- FAX
EMAIL: BEEPER:
SIGNED BY.
TITLE: DATE.
FAILURE TO COMPLETE. SIGN. AND RETURN THIS FORM SHALL DISOUALIFY THIS BID.
Page 2 of 34
Certifications
Legal Name of Firm:
Entity Type: Partnership, Sole Proprietorship, Corporation, etc.
Year Established:
Office Location: City of Miami, Miami -Dade County, or Other
Address:
City, State, and Zip Code:
Telephone Number:
Fax Number:
E-mail Address:
Contact Person (First and Last Name):
Business Tax Receipt / Occupational License Number:
Business Tax Receipt / Occupational License Issuing Agency:
Business Tax Receipt / Occupational License Expiration Date:
Respondent certifies that (s) he has read and understood the provisions of City of Miami Ordinance No.
Page 3 of 34
10032 (Section 18-105 of the City Code) pertaining to the implementation of a "First Source Hiring
Agreement.": Yes or No
Please list and acknowledge all addendum/addenda received. List the addendurn/addenda number and
date of receipt (i.e. Addendum No. 1, 7/1/07). If no addendum/addenda was/were issued, please insert
N/A.
Page 4 of 34
Line: 1
Description: Commercial Solid Waste Hauling Services
Category: 96239-00
Unit of Measure:
Unit Price: $
Number of Units: Total: $
Page 5 of 34
Rec, _ for Qualifications (RFQ)
222246
Table of Contents
Terms and Conditions 7
1. General Conditions 7
I.1. GENERAL TERMS AND CONDITIONS 7
2. Special Conditions 24
2.1. PURPOSE 24
2.2. DEADLINE FOR RECEIPT OF REQUEST FOR ADDITIONAL
INFORMATION/CLARIFICATION .. 24
2.3. TERM OF FRANCHISE AGREEMENT 24
2.4. CONDITIONS FOR RENEWAL 24
2.5. MINIMUM QUALIFICATIONS OF PROPOSER(S) 24
2.6. PERMITS AND LICENSES 25
2.7. LEGAL REQUIREMENTS 25
2.8. PERFORMANCE 25
2.9. WORK ASSIGNMENTS 25
2.10. USE OF SUBCONTRACTORS .25
2.11, ASSIGNMENT 26
2.12. INSURANCE REQUIREMENTS 26
2.13, HOLD HARMLESS 28
2.14. PRE-BID/PRE-PROPOSAL CONFERENCE 28
2.15. CONTRACT ADMINISTRATOR 28
2.16. PERFORMANCE BOND REQUIREMENTS 28
2.17. USE OF PREMISES 28
2.18. LABOR, SUPERVISORS, EQUIPMENT AND MATERIALS 28
2.19. EMPLOYEES ARE RESPONSIBILITY OF QUALIFIED PROPOSER(S) 28
2.20. FRANCHISE AGREEMENT 29
2.21. LIMI FED AGREEMENT EXTENSION 29
2.22. DAMAGES TO PUBLIC/PRIVATE PROPERTY 29
2.23. SAFETY MEASURES 29
2.24. TERMINATION 29
2.25. ADDITIONAL TERMS AND CONDITIONS 30
2.26. PRIMARY CLIENT (FIRST PRIORITY) 30
2.27. CHANGES/ALTERATIONS 30
2.28. ADDITIONAL SERVICES 30
2.29. ADDITIONAL QUALIFIED PROPOSER(S) 30
2.30. AUDIT AND INSPECTION RIGHTS 30
2.31. TRUTH IN NEGOTIATION CERTIFICATE 32
3. Specifications 33
3.1. SPECIFICATIONS/SCOPE OF WORK 33
4. Submission Requirements 34
4.1. SUBMISSION REQUIREMENTS 34
4.2. OPTIONAL REQUEST 34
Page 6 of 34
Refit. ., for Qualifications (RFQ)
222246
Terms and Conditions
1. General Conditions
1.1. GENERAL TERMS AND CONDITIONS
Intent: The General Terms and Conditions described herein apply to the acquisition of
goods/equipment/services with an estimated aggregate cost of $25,000.00 or more.
Definition: A formal solicitation is defined as issuance of an Invitation for Bids, Request for Proposals,
Request for Qualifications, or Request for Letters of Interest pursuant to the City of
Miami Procurement Code and/or Florida Law, as amended. Formal Solicitation and Solicitation shall be
defined in the same manner herein.
1.1. ACCEPTANCE OF GOODS OR EQUIPMENT - Any good(s) or equipment delivered under this
formal solicitation, if applicable, shall remain the property of the seller until a physical inspection and
actual usage of the good is made, and thereafter is accepted as satisfactory to the City. It must comply with
the terms herein and be fully in accordance with specifications and of the highest quality. In the event the
goods/equipment supplied to the City are found to be defective or does not conform to specifications, the
City reserves the right to cancel the order upon written notice to the Contractor and return the product to the
Contractor at the Contractor's expense.
1.2. ACCEPTANCE OF OFFER - The signed or electronic submission of your solicitation response shall
be considered an offer on the part of the bidder/proposer; such offer shall be deemed accepted upon
issuance by the City of a purchase order.
1.3. ACCEPTANCE/REJECTION — The City reserves the right to accept or reject any or all responses or
parts of after opening/closing date and request re -issuance on the goods/services described in the formal
solicitation. In the event of such rejection, the Director of Purchasing shall notify all affected
bidders/proposers and make available a written explanation for the rejection, The City also reserves the
right to reject the response of any bidder/proposer who has previously failed to properly perform under the
terms and conditions of a contract, to deliver on time contracts of a similar nature, and who is not in a
position to perform the requirements defined in this formal solicitation. The City further reserves the right
to waive any irregularities or minor informalities or technicalities in any or all responses and may, at its
discretion, re -issue this formal solicitation.
1.4. ADDENDA --- It is the bidder's/proposer's responsibility to ensure receipt of all Addenda. Addenda are
available at the City's website at: http://www.ci.miami.fl.us/procurement
1.5. ALTERNATE RESPONSES MAY BE CONSIDERED - The City may consider one (I) alternate
response from the same Bidder/Proposer for the same formal solicitation; provided, that the alternate
response offers a different product that meets or exceeds the formal solicitation requirements. In order for
the City to consider an alternate response, the Bidder/Proposer shall complete a separate Price Sheet form
and shall mark "Alternate Response". Alternate response shall be placed in the same response. This
provision only applies to formal solicitations for the procurement of goods, services, items, equipment,
materials, and/or supplies.
1.6. ASSIGNMENT - Contractor agrees not to subcontract, assign, transfer, convey, sublet, or otherwise
dispose of the resulting Contract, or any or all of its right, title or interest herein, without City of Miami's
prior written consent.
1.7. ATTORNEY'S FEES - In connection with any litigation, mediation and arbitration arising out of this
Contract, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees through
and including appellate Iitigation and any post -judgment proceedings.
1.8. AUDIT RIGHTS AND RECORDS RETENTION - The Successful Bidder/Proposer agrees to
provide access at all reasonable times to the City, or to any of its duly authorized representatives, to any
books, documents, papers, and records of Contractor which are directly pertinent to this formal solicitation,
for the purpose of audit, examination, excerpts, and transcriptions. The Successful Bidder/Proposer shall
maintain and retain any and all of the books, documents, papers and records pertinent to the Contract for
Page 7 of 34
Rect. for Qualifications (RFQ)
222246
three (3) years after the City makes final payment and all other pendingmatters are closed. Contractor's
failure to or refusal to comply with this condition shall result in the immediate cancellation of this contract
by the City.
1.9. AVAILABILITY OF CONTRACT STATE-WIDE - Any Governmental, not -for -profit or
quasi -governmental entity in the State of Florida, may avail itself of this contract and purchase any and all
goods/services, specified herein from the successful bidder(s)/proposer(s) at the contract price(s)
established herein, when permissible by federal, state, and local Iaws, rules, and regulations.
Each Governmental, not -for -profit or quasi -governmental entity which uses this formal solicitation and
resulting bid contract or agreement will establish its own contract/agreement, place its own orders, issue its
own purchase orders, be invoiced there from and make its own payments, determine shipping terms and
issue its own exemption certificates as required by the successful bidder(s)/proposer(s).
1.10. AWARD OF CONTRACT:
A. The Formal Solicitation, Bidder's/Proposer's response, any addenda issued, and the purchase order shall
constitute the entire contract, unless modified in accordance with any ensuing contract/agreement,
amendment or addenda.
B. The award of a contract where there are Tie Bids will be decided by the Director of Purchasing or
designee in the instance that Tie Bids can't be determined by applying Florida Statute 287.087, Preference
to Businesses with Drug -Free Workplace Programs:
C. The award of this contract may be preconditioned on the subsequent submission of other documents as
specified in the Special Conditions or Technical Specifications. Bidder/Proposer shall be in default of its
contractual obligation if such documents are not submitted in a timely manner and in the form requiredby
the City. Where Bidder/Proposer is in default of these contractual requirements, the City, through action
taken by the Purchasing Department, will void its acceptance of the Bidder's/Proposer's Response and may
accept the Response from the next lowest responsive, responsible Bidder or Proposal most advantageous to
the City or re -solicit the City's requirements. The City, at its sole discretion, may seek monetary restitution
from Bidder/Proposer and its bid/proposal bond or guaranty, if applicable, as a result of damages or
increased costs sustained as a result of the Bidder's/Proposer's default.
D. The term of the contract shall be specified in one of three documents which shall be issued to the
successful Bidder/Proposer. These documents may either be a purchase order, notice of award and/or
contract award sheet.
E. The City reserves the right to automatically extend this contract for up to one hundred twenty (120)
calendar days beyond the stated contract term in order to provide City departments with continual service
and supplies while a new contract is being solicited, evaluated, and/or awarded. If the right is exercised,
the City shall notify the Bidder/Proposer, in writing, of its intent to extend the contract at the same price,
terms and conditions for a specific number of days. Additional extensions over the first one hundred
twenty (120) day extension may occur, if, the City and the Successful Bidder/Proposer are in mutual
agreement of such extensions.
F. Where the contract involves a single shipment of goods to the City, the contract term shall conclude
upon completion of the expressed or implied warranty periods.
G. The City reserves the right to award the contract on a split -order, lump sum or individual -item basis,
or such combination as shall best serve the interests of the City unless otherwise specified.
H. A Contract/Agreement may be awarded to the Bidder/Proposer by the City Commission based upon
the minimum qualification requirements reflected herein. As a result of a RFP, RFQ, or RFLI, the City
reserves the right to execute or not execute, as applicable, an Agreement with the Proposer, whichever is
determined to be in the City's best interests. Such agreement will be furnished by the City, will contain
certain terns as are in the City's best interests, and will be subject to approval as to legal form by the City
Attorney.
1.11. BID BOND/ BID SECURITY - A cashier's or certified check, or a Bid Bond signed by a recognized
surety company that is licensed to do business in the State of Florida, payable to the City of Miami, for the
amount bid is required from all bidders/proposers, if so indicated under the Special Conditions. This check
or bond guarantees that a bidder/proposer will accept the order or contract/agreement, as bid/proposed, if it
is awarded to bidder/proposer. Bidder/Proposer shall forfeit bid deposit to the City should City award
Page 8 of 34
Rec� . for Qualifications (RFQ)
222246
contract/agreement to Bidder/Proposer and Bidder/Proposer fails to accept the award. The City reserves the
right to reject any and all surety tendered to the City. Bid deposits are returned to unsuccessful
bidders/proposers within ten (10) days after the award and successful bidder's/proposer's acceptance of
award. If sixty (60) days have passed after the date of the formal solicitation closing date, and no contract
has been awarded, all bid deposits will be returned on demand.
1.12. RESPONSE FORM (HARDCOPY FORMAT) - All forms should be completed, signed and
submitted accordingly.
1.13. BID SECURITY FORFEITED LIQUIDATED DAMAGES - Failure to execute an Agreement
and/or file an acceptable Performance Bond, when required, as provided herein, shall be just cause for the
annuhnent of the award and the forfeiture of the Bid Security to the City, which forfeiture shall be
considered, not as a penalty, but in mitigation of damages sustained. Award may then be made to the
next Iowest responsive, responsible Bidder or Proposal most advantageous to the City or all responses may
be rejected.
1.14. BRAND NAMES - If and wherever in the specifications brand names, makes, models, names of any
manufacturers, trade names, or bidder/proposer catalog numbers are specified, it is for the purpose of
establishing the type, function, minimum standard of design, efficiency, grade or quality of goods only.
When the City does not wish to rule out other competitors' brands or makes, the phrase "OR EQUAL" is
added. When bidding/proposing an approved equal, Bidders/Proposers will submit, with their response,
complete sets of necessary data (factory information sheets, specifications, brochures, etc.) in order for the
City to evaluate and determine the equality of the items) bid/proposed. The City shall be the sole judge of
equality and its decision shall be final. Unless otherwise specified, evidence in the form of samples may be
requested if the proposed brand is other than specified by the City. Such samples are to be furnished after
formal solicitation opening/closing only upon request of the City. If samples should be requested, such
samples must be received by the City no later than seven (7) calendar days after a formal request is made.
1.15. CANCELLATION - The City reserves the right to cancel all formal solicitations before its
opening/closing. In the event of bid/proposal cancellation, the Director of Purchasing shall notify all
prospective bidders/proposers and make available a written explanation for the cancellation.
1.16. CAPITAL EXPENDITURES - Contractor understands that any capital expenditures that the firm
makes, or prepares to make, in order to deliver/perform the goods/services required by the City, is a
business risk which the contractor must assume. The City will not be obligated to reimburse amortized or
unamortized capital expenditures, or to maintain the approved status of any contractor. If contractor has
been unable to recoup its capital expenditures during the time it is rendering such goods/services, it shall
not have any claim upon the City.
1.17. CITY NOT LIABLE FOR DELAYS - It is further expressly agreed that in no event shall the City
be liable for, or responsible to, the Bidder/Proposer/Consultant, any sub-contractor/sub-consultant, or to
any other person for, or on account of, any stoppages or delay in the work herein provided for by injunction
or other legal or equitable proceedings or on account of any delay for any cause over which the City has no
control.
1.18. COLLUSION—Bidder/Proposer, by submitting a response, certifies that its response is made without
previous understanding, agreement or connection either with any person, firm or corporation submitting a
response for the same items/services or with the City of Miami's Purchasing Department or initiating
department. The Bidder/Proposer certifies that its response is fair, without control, collusion, fraud or other
illegal action. Bidder/Proposer certifies that it is in compliance with the Conflict of Interest and Code of
Ethics Laws. The City will investigate all potential situations where collusion may have occurred and the
City reserves the right to reject any and all bids/responses where collusion may have occurred.
1.19. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS - Contractor understands that
contracts between private entities and local governments are subject to certain laws and regulations,
including laws pertaining to public records, conflict of interest, records keeping, etc. City and Contractor
agree to comply with and observe all applicable laws, codes and ordinances as that may in any way affect
the goods or equipment offered, including but not Iimited to:
A. Executive Order 11246, which prohibits discrimination against any employee, applicant, or client
because of race, creed, color, national origin, sex, or age with regard to, but not limited to, the following:
employment practices, rate of pay or other compensation methods, and training selection.
Page 9 of 34
Rec. for Qualifications (RFQ)
222246
B. Occupational, Safety and Health Act (OSHA), as applicable to this Formal Solicitation.
C. The State of Florida Statutes, Section 287.133(3)(A) on Public Entity Crimes.
D. Environment Protection Agency (EPA), as applicable to this Formal Solicitation.
E. Uniform Commercial Code (Florida Statutes, Chapter 672).
F. Americans with Disabilities Act of 1990, as amended.
G. National Institute of Occupational Safety Hazards (NIOSH), as applicable to this Formal Solicitation.
H. National Forest Products Association (NFPA), as applicable to this Formal Solicitation.
I. City Procurement Ordinance City Code Section 18, Article III.
J. Conflict of Interest, City Code Section 2-611;61.
K. Cone of Silence, City Code Section 18-74.
L. The Florida Statutes Sections 218.73 and 218.74 on Prompt Payment.
M. First Source Hiring Agreement, City Ordinance No. 10032, as applicable to this Formal Solicitation,
Implemented to foster the creation of new and permanent jobs for City of Miami residents; requires as a
condition precedent to the execution of service contracts including professional services.
Lack of knowledge by the bidder/proposer will in no way be a cause for relief from responsibility.
Non-compliance with all local, state, and federal directives, orders, and laws may be considered grounds
for termination of contract(s).
Copies of the City Ordinances may be obtained from the City Clerk's Office.
1.20. CONE OF SILENCE - Pursuant to Section 18-74 of the City of Miami Code, a "Cone of Silence" is
imposed upon each RFP, RFQ, RFLI, or IFB after advertisement and terminates at the time the City
Manager issues a written recommendation to the Miami City Cornrnission. The Cone of Silence shall be
applicable only to Contracts for the provision of goods and services and public works or improvements for
amounts greater than $200,000. The Cone of Silence prohibits any communication regarding RFPs, RFQs,
RFLI or IFBs (bids) between, among others:
Potential vendors, service providers, bidders, lobbyists or consultants and the City's professional staff
including, but not limited to, the City Manager and the City Manager's staff; the Mayor, City
Commissioners, or their respective staffs and any member of the respective selection/evaluation committee.
The provision does not apply to, among other communications:
oral communications with the City purchasing staff, provided the communication is limited strictly to
masters of process or procedure already contained in the formal solicitation document; the provisions of the
Cone of Silence do not apply to oral communications at duly noticed site visits/inspections, pre -proposal or
pre -bid conferences,oral presentations before selection/evaluation committees, contract negotiations during
any duly noticed public meeting, or public presentations made to the Miami City Commission during a duly
noticed public meeting; or communications in writing or by email at any time with any City employee,
official or member of the City Commission unless specifically prohibited by the applicable RFP, RFQ,
RFLI or IFB (bid) documents (See Section 2.2. of the Special Conditions); or communications in
connection with the collection of industry connnents or the performance of market research regarding a
particular RFP, RFQ, RFLI OR IFB by City Purchasing staff.
Proposers or bidders must file a copy of any written communications with the Office of the City Clerk,
which shall be made available to any person upon request. The City shall respond in writing and file a copy
with the Office of the City Clerk, which shall be made available to any person upon request. Written
communications may be in the form of e-mail, with a copy to the Office of the City Clerk.
In addition to any other penalties provided by law, violation of the Cone of Silence by any proposer or
bidder shall render any award voidable. A violation by a particular Bidder, Proposer, Offeror, Respondent,
lobbyist or consultant shall subject same to potential penalties pursuant to the City Code. Any person
having personal knowledge of a violation of these provisions shall report such violation to the State
Attorney and/or may file a complaint with the Ethics Commission. Proposers or bidders should reference
Section 18-74 of the City of Miami Code for further clarification.
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This language is only a summary of the key provisions of the Cone of Silence. Please review City of
Miami Code Section 18-74 for a complete and thorough description of the Cone of Silence. You may
contact the City Clerk at 305-250-5360, to obtain a copy of same.
1.21. CONFIDENTIALITY - As a political subdivision, the City of Miami is subject to the Florida
Sunshine Act and Public Records Law. If this Contract/Agreement contains a confidentiality provision, it
shall have no application when disclosure is required by Florida law or upon court order.
1.22. CONFLICT OF INTEREST — Bidders/Proposers, by responding to this Formal Solicitation, certify
that to the best of their knowledge or belief, no elected/appointed official or employee of the City of Miami
is fmancially interested, directly or indirectly, in the purchase of goods/services specified in this Formal
Solicitation. Any such interests on the part of the Bidder/Proposer or its employees must be disclosed in
writing to the City. Further, you must disclose the name of any City employee who owns, directly or
indirectly, an interest of five percent (5%) or more of the total assets of capital stock in your firm.
1.23. COPYRIGHT OR PATENT RIGHTS — Bidders/Proposers warrant that there has been no violation
of copyright or patent rights in manufacturing, producing, or selling the goods shipped or ordered and/or
services provided as a result of this formal solicitation, and bidders/proposers agree to hold the City
harmless from any and all liability, loss, or expense occasioned by any such violation.
1.24. COST INCURRED BY BIDDER/PROPOSER - All expenses involved with the preparation and
submission of Responses to the City, or any work performed in connection therewith shall be borne by the
Bidder(s)/Proposer(s).
1.25. DEBARMENT AND SUSPENSIONS (Sec 18-107)
(a) Authority and requirement to debar and suspend. After reasonable notice to an actual or prospective
Contractual Party, and after reasonable opportunity for such party to be heard, the City Manager, after
consultation with the Chief Procurement Officer and the city attorney, shall have the authority to debar a
Contractual Party, for the causes listed below, from consideration for award of city Contracts. The
debarment shall be for a period of not fewer than three years. The City Manager shall also have the
authority to suspend a Contractual Party from consideration for award of city Contracts if there is probable
cause for debarment, pending the debarment determination. The authority to debar and suspend contractors
shall be exercised in accordance with regulations which shall be issued by the Chief Procurement Officer
after approval by the City Manager, the city attorney, and the City Commission.
(b)
Causes for debarment or suspension. Causes for debarment or suspension include the following:
(1) Conviction for commission of a criminal offense incident to obtaining or attempting to obtain a
public or private Contract or subcontract, or incident to the performance of such Contract or
subcontract.
(2) Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification
or destruction of records, receiving stolen property, or any other offense indicating a lack of business
integrity or business honesty.
(3) Conviction under state or federal antitrust statutes arising out of the submission of Bids or
Proposals.
(4) Violation of Contract provisions, which is regarded by the Chief Procurement Officer to be
indicative of nonresponsibility. Such violation may include failure without good cause to perform in
accordance with the terms and conditions of a Contract or to perform within the time limits provided in
a Contract, provided that failure to perform caused by acts beyond the control of a party shall not be
considered a basis for debarment or suspension.
(5) Debarment or suspension of the Contractual Party by any federal, state or other governmental
entity.
(6) False certification pursuant to paragraph (c) below.
(7)
Found in violation of a zoning ordinance or any other city ordinance or regulation and for
which the violation remains noncompliant.
(8) Found in violation of a zoning ordinance or any other city ordinance or regulation and for
which a civil penalty or fine is due and owing to the city.
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(9) Any other cause judged by the City Manager to be so serious and compelling as to affect the
responsibility of the Contractual Party performing city Contracts.
(c) Certification. All Contracts forgoods and services, sales, and leases by the city shall contain a
certification that neither the Contractual Party nor any of its principal owners or personnel have been
convicted of any of the violations set forth above or debarred or suspended as set forth in paragraph (b)(5).
(d) Debarment and suspension decisions. Subject to the provisions of paragraph (a), the City Manager shall
render a written decision stating the reasons for the debarment or suspension. A copy of the decision shall
be provided promptly to the Contractual Party, along with a notice of said party's right to seek judicial
relief.
1.26. DEBARRED/SUSPENDED VENDORS —An entity or affiliate who has been placed on the State of
Florida debarred or suspended vendor list niay not submit a response on a contract to provide goods or
services to a public entity, may not submit a response on a contract with a public entity for the construction
or repair of a public building or public work, may not submit response on leases of real property to a public
entity, may not award or perform work as a contractor, supplier, subcontractor, or consultant under contract
with any public entity, and may not transact business with any public entity.
1.27. DEFAULT/FAILURE TO PERFORM - The City shall be the sole judge of nonperformance, which
shall include any failure on the part of' the successful Bidder/Proposer to accept the award, to furnish
required documents, and/or to fulfill any portion of this contract within the time stipulated,
Upon default by the successful Bidder/Proposer to meet any terms of this agreement, the City will notify
the Bidder/Proposer of the default and will provide the contractor three (3) days (weekends and holidays
excluded) to remedy the default. Failure on the contractor's part to correct the default within the required
three (3) days shall result in the Contract being terminated and upon the City notifying in writing the
contractor of its intentions and the effective date of the termination. The following shall constitute default:
A. Failure to perform the work or deliver the goods/services required under the Contract and/or within the
time required or failing to use the subcontractors, entities and personnel as identified and set forth, and to
the degree specified in the Contract.
B. Failure to begin the work under this Contract within the time specified.
C. Failure to perform the work with sufficient workers and equipment or with sufficient materials to
ensure timely completion.
D. Neglecting or refusing to remove materials or perform new work where prior work has been rejected as
nonconforming with the terms of the Contract.
E. Becoming insolvent, being declared bankrupt, or committing any act of bankruptcy or insolvency, or
making an assignment for the benefit of creditors, if the insolvency, bankruptcy, or assignment renders the
successful Bidder/Proposer incapable of performing the work in accordance with and as required by the
Contract.
F. Failure to comply with any of the terms of the Contract in any material respect.
All costs and charges incurred by the City as a result of a default or a default incurred beyond the time
limits stated, together with the cost of completing the work, shall be deducted from any monies due or
which may become due on this Contract.
1.28. DETERMINATION OF RESPONSIVENESS - Each Response will be reviewed to determine if it
is responsive to the submission requirements outlined in the Formal Solicitation. A "responsive" response is
one which follows the requirements of the formal solicitation, includes all documentation, is submitted in
the format outlined in the formal solicitation, is of timely submission, and has appropriate signatures as
required on each document. Failure to comply with these requirements may deem a Response
non -responsive.
1.29. DISCOUNTS OFFERED DURING TERM OF CONTRACT - Discount Prices offered in the
response shall be fixed after the award by the Commission, unless otherwise specified in the Special Terms
and Conditions. Price discounts off the original prices quoted in the response will be accepted from
successful Bidder(s)/Proposer(s) during the term of the contract. Such discounts shall remain in effect for
a minimum of 120 days from approval by the City Commission Any discounts offered by a manufacturer
to Bidder/Proposer will be passed on to the City.
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1.30. DISCREPANCIES, ERRORS, AND OMISSIONS - Any discrepancies, errors, or ambiguities in
the Formal Solicitation: or addenda (if any) should be reported in writing to the City's Purchasing
Department. Should it be found necessary, a written addendum will be incorporated in the Formal
Solicitation and will become part of the purchase agreement (contract documents). The City will not be
responsible for any oral instructions, clarifications, or other communications.
A. Order of Precedence — Any inconsistency in this formal solicitation shall be resolved by giving
precedence to the following documents, the first of such list being the governing documents.
1) Addenda (as applicable)
2) Specifications
3) Special Conditions
4) General Terms and Conditions
1.31. EMERGENCY / DISASTER PERFORMANCE - In the event of a hurricane or other emergency
or disaster situation, the successful vendor shall provide the City with the commodities/services defined
within the scope of this formal solicitation at the price contained within vendor's response. Further,
successful vendor shall deliver/perform for the city on a priority basis during such times of emergency.
1.32. ENTIRE BID CONTRACT OR AGREEMENT - The Bid Contract or Agreement consists of this
City of Miami Formal Solicitation and specifically this General Conditions Section, Contractor's Response
and any written agreement entered into by the City of Miami and Contractor in cases involving RFPs,
RFQs, and RFLIs, and represents the entire understanding and agreement between the parties with respect
to the subject matter hereof and supersedes all other negotiations, understanding and representations, if any,
made by and between the parties. To the extent that the agreement conflicts with, modifies, alters or
changes any of the terms and conditions contained in the Formal Solicitation and/or Response, the Formal
Solicitation and then the Response shall control. This Contract may be modified only by a written
agreement signed by the City of Miami and Contractor.
1.33. ESTIMATED QUANTITIES —Estimated quantities or estimated dollars are provided for your
guidance only. No guarantee is expressed or implied as to quantities that will be purchased during the
contract period. The City is not obligated to place an order for any given amount subsequent to the award
of this contract. Said estimates may be used by the City for purposes of determining the low bidder or most
advantageous proposer meeting specifications. The City reserves the right to acquire additional quantities
at the prices bid/proposed or at lower prices in this Formal Solicitation.
1.34. EVALUATION OF RESPONSES
A.Rej ection of Responses
The City may reject a Response for any of the following reasons:
1) Bidder/Proposer fails to acknowledge receipt of addenda;
2) Bidder/Proposer mistates or conceals any material fact in the Response ;
3) R.esponse does not conform to the requirements of the Formal Solicitation;
4) Response requires a conditional award that conflicts with the method of award;
5) Response does not include required samples, certificates, licenses as required; and,
6) Response was not executed by the Bidder's/Proposer(s) authorized agent.
The foregoing is not an all inclusive list of reasons for which a Response may be rejected. The City may
reject and re -advertise for all or any part of the Formal Solicitation whenever it is deemed in the best
interest of the City.
B. Elimination From Consideration
1) A. contract shall not be awarded to any person or firm which is in arrears to the City upon any debt or
contract, or which is a defaulter as surety or otherwise upon any obligation to the City.
2) A contract may not be awardedto any person or firm which has failed to perform under the terms and
conditions of any previous contract with the City or deliver on time contracts of a similar nature.
3) A contract may not be awarded to any person or firm which has been debarred by the City in
accordance with the City's lJebannent and Suspension Ordinance.
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C. Determination of Responsibility
1) Responses will only be considered from entities who are regularly engaged in the business of providing
the goods/equipment/services required by the Formal Solicitation. Bidder/Proposer must be able to
demonstrate a satisfactory record of performance and integrity; and, have sufficient financial, material,
equipment, facility,personnel resources, and expertise to meet all contractual requirements. The terms
"equipment and organization" as used herein shall be construed to mean a fully equipped and well
established entity in line with the best industry practices in the industry as determined by the City.
2) The City may consider any evidence available regarding the financial, technical and other qualifications
and abilities of a Bidder/Proposer, including past performance (experience) with the City or any other
governmental entity in making the award,
3) The City may require the Bidder(s)/Proposer(s) to show proof that they have been designated as an
authorized representative of a manufacturer or supplier which is the actual source of supply, if required by
the Formal Solicitation.
1.35. EXCEPTIONS TO GENERAL AND/OR SPECIAL CONDITIONS OR SPECIFICATIONS
Exceptions to the specifications shall be listed on the Response and shall reference the section. Any
exceptions to the General or Special Conditions shall be cause for the bid (IFB) to be considered
non -responsive. It also may be cause for a RFP, RFQ, or RFLI to be considered non -responsive; and, if
exceptions are taken to the terms and conditions of the resulting agreement it may lead to terminating
negotiations.
1.36. F.O.B. DESTINATION - Unless otherwise specified in the Formal Solicitation, all prices
quoted/proposed by the bidder/proposer must be F.O.B. DESTINATION, inside delivery, with all delivery
costs and charges included in the bid/proposal price, unless otherwise specified in this Formal
Solicitation. Failure to do so may be cause for rejection of bid/proposal.
1.37. FIRM PRICES - The bidder/proposer warrants that prices, terms, and conditions quoted in its
response will be firm throughout the duration of the contract unless otherwise specified in the Formal
Solicitation. Such prices will remain firm for the period of performance or resulting purchase orders or
contracts, which are to be performed or supplied over a period of time.
1.38. FIRST -SOURCE HIRING AGREEMENT (Sec. 18-105)
(a) The Commission approves implementation of the first -source hiring agreement policy and requires
as a conditionprecedent to the execution of service contracts for facilities, services, and/or receipt of grants
and loans, for projects of a nature that create new jobs, the successful negotiation of first -source hiring
agreements between the organization or individual receiving said contract and the authorized representative
unless suchan agreement is found infeasible by the city manager and such finding approved by the City
Commission at a public hearing.
(b) For the purpose of this section, the following terms, phrases, words and their derivations shall have
the following meanings:
Authorized representative means the Private Industry Council of South Florida/South Florida Employment
and Training Consortium, or its successor as local recipient of federal and state training and employment
funds.
Facilities means .all publicly financed projects, including but without limitation, unified development
projects, municipal public works, and municipal improvements to the extent they are financed through
public money services or the use of publicly owned property.
Grants and loans means, without limitation, urban development action grants (UDAG), economic
development agency construction loans, loans from Miami Capital Development, Incorporated, and all
federal and state grants administered by the city.
Service contracts means contracts for the procurement of services by the city which include professional
services.
Services includes, without limitation, public works improvements, facilities, professional services,
commodities, supplies, materials and equipment.
(c)
The authorized representative shall negotiate each first -source hiring agreement.
(d) The primary beneficiaries of the first -source hiring agreement shall be participants of the city
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training and employment. programs, and other residents of the city.
1.39. FLORIDA MINIMUM WAGE - The Constitution of the State of Florida, Article X, Section 24,
states that employers shall pay employee wages no less than the minimum wage for all hours worked in
Florida. Accordingly, it is the contractor's and its' subcontractor(s) responsibility to understand and
comply with this Florida constitutional minimum wage requirement and pay its employees the current
established hourly minimum wage rate, which is subject to change or adjusted by the rate of inflation using
the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index as
calculated by the United States Department of Labor. Each adjusted minimum wage rate calculated shall
be determined and published by the Agency Workforce Innovation on September 30th of each year and
take effect on the following January lst.
At the time of responding, it is bidder/proposer and his/her subcontractor(s), if applicable, full
responsibility to determine whether any of its employees may be impacted by this Florida Law at any given
point in time during the term of the contract. If impacted, bidder/proposer must furnish employee name(s),
job title(s), job description(s), and current pay rate(s). Failure to submit this information at the time of
submitting a response constitute successful bidder's/proposer's acknowledgement and understanding that
the Florida Minimum Wage Law will not impact its prices throughout the term of contract and waiver of
any contractual price increase request(s). The City reserves the right to request and successful
bidder/proposer must provide for any and all information to make a wage and contractual price increase(s)
determination.
1.40. GOVERNING LAW AND VENUE - The validity and effect of this Contract shall be governed by
the laws of the State of Florida. The parties agree that any action, mediation or arbitration arising out of this
Contract shall take place in Miami -Dade County, Florida.
1.41. HEADINGS AND TERMS - The headings to the various paragraphs of this Contract have been
inserted for convenient reference only and shall not in any manner be construed as modifying, amending or
affecting in any way the expressed terms and provisions hereof.
1.42. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIITA) - Any
person or entity that performs or assists the City of Miami with a function or activity involving the use or
disclosure of "individually identifiable health information (IIHI) and/or Protected Health Information (PHI)
shall comply with the Health Insurance Portability and Accountability Act (HIPAA) of 1996 and the City
of Miami Privacy Standards. HIPAA mandates for privacy, security and electronic transfer standards,
which include but are not limited to:
A. Use of information only for performing services required by the contract or as required by law;
B. Use of appropriate safeguards to prevent non -permitted disclosures;
C. Reporting to the City of Miami of any non -permitted use or disclosure;
D. Assurances that any agents and subcontractors agree to the same restrictions and conditions that apply to
the Bidder/Proposer and reasonable assurances that IIHI/PHI will be held confidential;
E. Malting Protected Health Information (PM) available to the customer;
F. Making PHI available to the customer for review and amendment; and incorporating any amendments
requested by the customer;
G. Making PHI available to the City of Miami for an accounting of disclosures; and
H. Making internal practices, books and records related to PHI available to the City of Miami for
compliance audits.
PHI shall maintain its protected status regardless of the form and method of transmission (paper records,
and/or electronic transfer of data). The Bidder/ Proposer must give its customers written notice of its
privacy information practices including specifically, a description of the types of uses and disclosures that
would be made with protected health information.
1.43. INDEMNIFICATION - The Contractor shall indemnify and save harmless forever the City, and all
the City's agents, officers and employeesfrom and against all charges or claims resulting from any bodily
injury, loss of life, or damage to property from any act, omission or neglect, by itself or its employees; the
Contractor shall become defendant in every suit brought for any of such causes of action against the City or
the City's officials, agents and employees; the Contractor shall further indemnify City as to all costs,
attorney's fees, expenses and liabilities incurred in the defense of any such claims and any resulting
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investigation.
1.44. INFORMATION AND DESCRIPTIVE LITERATURE —Bidders/Proposer must furnish all
information requested in the spaces provided in the Formal Solicitation. Further, as may be specified
elsewhere, each Bidder/Proposer must submit for evaluation, cuts, sketches, descriptive literature, technical
specifications, and Material Safety Data Sheets (MSDS)as required, covering the products offered.
Reference to literature submitted with a previous response or on file with the Buyer will not satisfy this
provision.
1.45. INSPECTIONS - The City may, at reasonable times during .the term hereof, inspect Contractor's
facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods
and/or services required to be provided by the Contractor under this Contract conform to the terms and
conditions of the Formal Solicitation. Contractor shall make available to the City all reasonable facilities
and assistance to facilitate the performance of tests or inspections by City representatives. All tests and
inspections shall be subject to, and made in accordance with, the provisions of the City of Miami Ordinance
No. 12271 (Section 18-79), as same may be amended or supplemented from time to time.
1.46. INSPECTION OF RESPONSE Responses received by the City pursuant to a Formal Solicitation
will not be made available until such time as the City provides notice of a decision or intended decision or
within 10 days after bid closing, whichever is earlier. Bid/Proposal results will be tabulated and may be
furnished upon request via fax or e-mail to the Sr. Procurement Specialist issuing the Solicitation.
Tabulations also are available on the City's Web Site following recommendation for award.
1.47. INSURANCE - Within ten (10) days after receipt of Notice of Award, the successful Contractor,
shall furnish Evidence of Insurance to the Purchasing Department, if applicable. Submitted evidence of
coverage shall demonstrate strict compliance to all requirements listed on the Special Conditions entitled
"Insurance Requirements". The City shall be listed as an "Additional Insured."
Issuance of a Purchase Order is contingent upon the receipt of proper insurance documents. If the
insurance certificate is received within the specified time frame but not in the manner prescribed in this
Solicitation the Contractor shall be verbally notified of such deficiency and shall have an additional five (5)
calendar days to submit a corrected certificate to the City. If the Contractor fails to submit the required
insurance documents in the manner prescribed in this Solicitation within fifteen (15) calendar days after
receipt Notice of Award, the contractor shall be in default of the contractual terms and conditions and shall
not be awarded the contract. Under such circumstances, the Bidder/Proposer may be prohibited from
submitting future responses to the City. Information regarding any insurance requirements shall be directed
to the Risk Administrator, Department of Risk Management, at 444 SW 2nd Avenue, 9th Floor, Miami,
Florida 33130, 305-416-1604.
The Bidder/Proposer shall be responsible for assuring that the insurance certificates required in
conjunction with this Section remain in effect for the duration of the contractual period; including any and
all option terms that may be granted to the Bidder/Proposer.
1.48. INVOICES - Invoices shall contain purchase order number and details of goods and/or services
delivered (i.e. quantity, unit price, extended price, etc); and in compliance with Chapter 218 of the Florida
Statutes (Prompt Payment Act).
1.49. LOCAL PREFERENCE - City Code Section 18-85, states that the City Commission may offer to a
responsible and responsive bidder/proposer, who maintains a Local Office, the opportunity of accepting a
bid at the low bid amount, if the original bid amount submitted by the local vendor is not more than ten
percent (10%) in excess of the lowest other responsible and responsive bidder/proposer.
1.50. MANUFACTURER'S CERTIFICATION - The City reserves the right to request from
bidders/proposers a separate Manufacturer's Certification of all statements made in the bid/proposal.
Failure to provide such certification may result in the rejection of bid/proposal or termination of
contract/agreement, for which the bidder/proposer must bear full liability.
1.51. MODIFICATIONS OR CHANGES IN PURCHASE ORDERS AND CONTRACTS - No
contract or understanding to modify this Formal Solicitation and resultant purchase orders or contracts, if
applicable, shall be binding upon the City unless made in writing by the Director of Purchasing of the City
of Miami, Florida through the issuance of a change order, addendum, amendment, or supplement to the
contract, purchase order or award sheet as appropriate.
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1.52. NO PARTNERSHIP OR JOINT VENTURE - Nothing contained in this Contract will be deemed
or construed to create a partnership or joint venture between the City of Miami and Contractor, or to create
any other similar relationship between the parties.
1.53. NONCONFORMANCE TO CONTRACT CONDITIONS - Items may be tested for compliance
with specifications under the direction of the Florida Department of Agriculture and Consumer Services or
by other appropriate testing Laboratories as determined by the City. The data derived from any test for
compliance with specifications is public record and open to examination thereto in accordance with
Chapter 119, Florida Statutes. Items delivered not conforming to specifications may be rejected and
returned at Bidder's/Proposer's expense. These non -conforming items not delivered as per delivery date in
the response and/or Purchase Order may result in bidder/proposer being found in default in which event
any and all re -procurement costs may be charged against the defaulted contractor. Any violation of these
stipulations may also result in the supplier's name being removed from the City of Miami's Supplier's list.
1.54. NONDISCRIMINATION —Bidder/Proposer agrees that it shall not discriminate as to race, sex,
color, age, religion, national origin, marital status, or disability in connection with its performance under
this formal solicitation. Furthermore, Bidder/Proposer agrees that no otherwise qualified individual shall
solely by reason of his/her race, sex, color, age, religion, national origin, marital status or disability be
excluded from the participation in, be denied benefits of, or be subjected to, discrimination under any
program or activity.
In connection with the conduct of its business, including performance of services and employment of
personnel, Bidder/Proposer shall not discriminate against any person on the basis of race, color, religion,
disability, age, sex, marital status or national origin. All persons having appropriate qualifications shall be
afforded equal opportunity for employment.
1.55. NON-EXCLUSIVE CONTRACT/ PIGGYBACK PROVISION - At such times as may serve its
best interest, the City of Miami reserves the right to advertise for, receive, and award additional contracts
for these herein goods and/or services, and to make use of other competitively bid (governmental)
contracts, agreements, or other similar sources for the purchase of these goods and/or services as may be
available.
It is hereby agreed and understood that this formal solicitation does not constitute the exclusive rights of
the successful bidders)/proposer(s) to receive all orders that may be generated by the City in conjunction
with this Formal Solicitation.
In addition, any and all commodities, equipment, and services required by the City in conjunction with
construction projects are solicited under a distinctly different solicitation process and shall not be purchased
under the terms, conditions and awards rendered under this solicitation, unless such purchases are
determined to be inthe best interest of the City.
1.56. OCCUPATIONAL LICENSE - Any person, firm, corporation or joint venture, with a business
location in the City of Miami and is submitting a Response under this Formal. Solicitation shall meet the
City's Occupational License Tax requirements in accordance with Chapter 31.1, Article I of the City of
Miami Charter. Others with a location outside the City of Miami shall meet their local Occupational
License Tax requirements. A copy of the license must be submitted with the response; however, the City
may at its sole option and in its best interest allow the Bidder/Proposer to supply the license to the City
during the evaluation period, but prior to award.
1.57. ONE PROPOSAL - Only one (1) Response from an individual, firm, partnership, corporation or
joint venture will be considered in response to this Formal Solicitation. When submitting an alternate
response, please refer to the herein condition for "Alternate Responses May Be Considered".
1.58. OWNERSHIP OF DOCUMENTS - It is understood by and between the parties that any documents,
records, files, or any other matter whatsoever which is given by the City to the successful Bidder/Proposer
pursuant to this formal solicitation shall at all times remain the property of the City and shall not be used by
the Bidder/Proposer for any other purposes whatsoever without the written consent of the City.
1.59. PARTIAL INVALIDITY - If any provision of this Contract or the application thereof to any person
or circumstance shall to any extent be held invalid, then the remainder of this Contract or the application of
such provision to persons or circumstances other than those as to which it is held invalid shall not be
affected thereby, and each provision of this Contract shall be valid and enforced to the fullest extent
permitted by law.
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1.60. PERFORMANCE/PAYMENT BOND —A Contractor may be required to furnish a
Perfonnance/Payment Bond as part of the requirements of this Contract, in an amount equal to one hundred
percent (100%) of the contract price.
1.61. PREPARATION OF RESPONSES (HARDCOPY FORMAT) —Bidders/Proposers are expected to
examine the specifications, required delivery, drawings, and all special and general conditions. All
bid/proposed amounts, if required, shall be either typewritten or entered into the space provided with ink.
Failure to do so will be at the Bidder's/Proposer's risk.
A. Each Bidder/Proposer shall furnish the information required in the Formal Solicitation. The
Bidder/Proposer shall sign the Response and print in ink or type the name of the Bidder/Proposer, address,
and telephone number on the face page and on each continuation sheet thereof on which he/she makes an
entry, as required.
B. If so required, the unit price for each unit offered shall be shown, and such price shall include
packaging, handling and shipping, and F.O.B. Miami delivery inside City premises unless otherwise
specified. Bidder/Proposer shall include in the response all taxes, insurance, social security, workmen's
compensation, and any other benefits normally paid by the Bidder/Proposer to its employees. If
applicable, a unit price shall be entered in the "Unit Price" column for each item. Based upon estimated
quantity, an extended price shall be entered in the "Extended Price" column for each item offered. In case
of a discrepancy between the unit price and extended price, the unit price will be presumed correct.
C. The Bidder/Proposer must state a definite time, if required, in calendar days for delivery of goods
and/or services.
D. The Bidder/Proposer should retain a copy of all response documents for future reference.
E. All responses, as described, must be fully completed and typed or printed in ink and must be signed in
ink with the firm's name and by an officer or employee having authority to bind the company or firm by
his/her signature. Bids/Proposals having any erasures or corrections must be initialed in ink by person
signing the response or the response may be rejected.
F. Responses are to remain valid for at least 180 days. Upon award of a contract, the content of the
Successful Bidder's/Proposer's response may be included as part of the contract, at the City's discretion.
G. The City of Miami's Response Forms shall be used when Bidder/Proposer is submitting its response in
hardcopy format. Use of any other forms will result in the rejection of the response. IF SUBMITTING
RARDCOPY FORMAT, THE ORIGINAL AND THREE (3) COPIES OF THESE SETS OF FORMS,
UNLESS OTHERWISE SPECIFIED, AND ANY REQUIRED ATTACHMENTS MUST BE
RETURNED TO TIIE CITY OR YOUR RESPONSE MAY BE DEEMED NON -RESPONSIVE.
1.62. PRICE ADJUSTMENTS — Any price decrease effectuated during the contract period either by
reason of market change or on the part of the contractor to other customers shall be passed on to the City of
Miami.
1.63. PRODUCT SUBSTITUTES - In the event a particular awarded and approved manufacturer's
product becomes unavailable during the term of the Contract, the Contractor awarded that item may
arrange with the City's authorized representative(s) to supply a substitute product at the awarded price or
lower, provided that a sample is approved in advance of delivery and that the new product meets or exceeds
all quality requirements.
1.64. CONFLICT OF INTEREST, AND UNETHICAL BUSINESS PRACTICE PROHIBITIONS -
Contractor represents and warrants to the City that it has not employed or retained any person or company
employed by the City to solicit or secure this Contract and that it has not offered to pay, paid, or agreed to
pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in
connection with, the award of this Contract.
1.65. PROMPT PAYMENT —Bidders/Proposers may offer a cash discount for prompt payment; however,
discounts shall not be considered in determining the lowest net cost for response evaluation purposes.
Bidders/Proposers are required to provide their prompt payment terms in the space provided on the Formal
Solicitation. If no prompt payment discount is being offered, the Bidder/Proposer must enter zero (0) for
the percentage discount to indicate no discount. If the Bidder/Proposer fails to enter a percentage, it is
understood and agreed that the terms shall be 2% 20 days, effective after receipt of invoice or final
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acceptance by the City, whichever is later.
When the City is entitled to a cash discount, the period of computation will commence on the date of
delivery, or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is
necessary due to damage, the cash discount period shall commence on the date final approval for payment
is authorized. If a discount is part of the contract, but the invoice does not reflect the existence of a cash
discount, the City is entitled to a cash discount with the period commencing on the date it is determined by
the City that a cash discount applies.
Price discounts off the original prices quoted on the Price Sheet will be accepted from successful
bidders/proposers during the tern of the contract.
1.66. PROPERTY - Property owned by the City of Miami is the responsibility of the City of Miami. Such
property furnished to a Contractor for repair, modification, study, etc., shall remain the property of the City
of Miami. Damages to such property occurring while in the possession of the Contractor shall be the
responsibility of the Contractor. Damages occurring to such property while in route to the City of Miami
shall be the responsibility of the Contractor. In the event that such property is destroyed or declared a total
loss, the Contractor shall be responsible for replacement value of the property at the current market value,
less depreciation of the property, if any.
1.67. PROVISIONS BINDING - Except as otherwise expressly provided in the resulting Contract, all
covenants, conditions and provisions of the resulting Contract shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns.
1.68. PUBLIC ENTITY CRIMES - A person or affiliate who has been placed on the convicted vendor List
following a conviction for a public entity crime may not submit a response on a contract to provide any
goods or services to a public entity, may not submit a response on a contract with a public entity for the
construction or repair of a public building or public work, may not submit responses on leases of real
property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or
consultant under a contract with any public entity, and may not transact business with any public entity in
excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36
months from the date of being placed on the convicted vendor list.
1.69. PUBLIC RECORDS - Contractor understands that the public shall have access, at all reasonable
times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter
119, Florida Statutes, and City of Miami Code, Section 18, Article III, and agrees to allow access by the
City and the public to all documents subject to disclosure under applicable law. Contractor's failure or
refusal to comply with the provision of this section shall result in the immediate cancellation of this
Contract by the City.
1.70. QUALITY OF GOODS, MATERIALS, SUPPLIES, PRODUCTS, AND EQUIPMENT - All
materials used in the manufacturing or construction of supplies, materials, or equipment covered by this
solicitation shall be new. The items bid/proposed must be of the latest make or model, of the best quality,
and of the highest grade of workmanship, unless as otherwise specified in this Solicitation.
1.71. QUALITY OF WORK/SERVICES - The work/services performed must be of the highest quality
and workmanship. Materials furnished to complete the service shall be new and of the highest quality
except as otherwise specified in this Solicitation.
1.72. REMEDIES PRIOR TO AWARD (Sec. 18-106) - If prior to Contract award it is determined that a
formal solicitation or proposed award is in violation oflaw, then the solicitation or proposed award shall be
cancelled by the City Commission, the City Manager or the Chief Procurement Officer, as may be
applicable, or revised to comply with the law.
1.73. RESOLUTION OF CONTRACT DISPUTES (Sec. 18-105)
(a) Authority to resolve Contract disputes. The City Manager, after obtaining the approval of the city
attorney, shall have the authority to resolve controversies between the Contractual Party and the city which
arise under, or by virtue of, a Contract between them; provided that, in cases involving an amount greater
than $25,000, the City Commission must approve the City Manager's decision. Such authority extends,
without limitation, to controversies based upon breach of Contract, mistake, misrepresentation or lack of
complete performance, and shall be invoked by a Contractual Party by submission of a protest to the City
Manager.
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(b) Contract dispute decisions. If a dispute is not resolved by mutual consent, the City Manager shall
promptly render a written report stating the reasons for the action taken by the City Commission or the City
Manager which shall be final and conclusive. A copy of the decision shall be immediately provided to the
protesting party, along with a notice of such parry's right to seek judicial relief, provided that the protesting
party shall not be entitled to such judicial relief without first having followed the procedure set forth in this
section.
1.74. RESOLUTION OF PROTESTED SOLICITATIONS AND AWARDS (Sec. 18-104)
(a) Right to protest. The following procedures shall be used for resolution of protested solicitations and
awards except for purchases of goods, supplies, equipment, and services, the estimated cost of which does
not exceed $25,000.
Protests thereon shall be governed by the Administrative Policies and Procedures of Purchasing.
1.Protest of Solicitation.
i. Any prospective proposer who perceives itself aggrieved in connection with the solicitation of a Contract
may protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with
the Chief Procurement Officer within three days after the Request for Proposals, Request for Qualifications
or Request for Letters of Interest is published in a newspaper of general circulation. A notice of intent to
file a protest is considered filed when received by the Chief Procurement Officer; or
ii. Any prospective bidder who intends to contest the Solicitation Specifications or a solicitation may
protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with the
Chief Procurement Officer within three days after the solicitation is published in a newspaper of general
circulation. A notice of intent to file a protest is considered filed when received by the Chief Procurement
Officer.
2. Protest of Award.
i. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within two
days after receipt by the proposer of the notice of the City Manager's recommendation for award of
Contract, which will be posted on the City of Miami Purchasing Department website, in the Supplier
Corner, Current Solicitations and Notice of Recommendation of Award Section. The notice of the City
Manager's recommendation can be found by selecting the details of the solicitation and is listed as
Recommendation of Award Posting Date and Recommendation of Award To fields. If "various" is
indicated in the Recommendation of Award To field, the Bidder/Proposer must contact the buyer for that
solicitation to obtain the suppliers name. It shall be the responsibility of the Bidder/Proposer to cheek this
section of the website daily after responses are submitted to receive the notice; or
Any actual Responsive and Responsible Bidder whose Bid is lower than that of the recommended bidder
may protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with
the Chief Procurement Officer within two days after receipt by the bidder of the notice of the city's
determination of non responsiveness or non responsibility. The receipt by bidder of such notice shall be
confirmed by the city by facsimile or electronic mail or U.S. mail, return receipt requested. A notice of
intent to file a protest is considered filed when received by the Chief Procurement Officer.
iii. A written protest based on any of the foregoing must be submitted to the Chief Procurement Officer
within five (5) days after the date the notice of protest was filed. A written protest is considered filed when
received by the Chief Procurement Officer.
The written protest may not challenge the relative weight of the evaluation criteria or the formula for
assigning points in making an award determination.
The written protest shall state with particularity the specific facts and law upon which the protest of the
solicitation or the award is based, and shall include all pertinent documents and evidence and shall be
accompanied by the required Filing Fee as provided in subsection (f). This shall form the basis for review
of the written protest and no facts, grounds, documentation or evidence not contained in the protester's
submission to the Chief Procurement Officer at the time of filing the protest shall be permitted in the
consideration of the written protest.
No time will be added to the above limits for service by mail. In computing any period of time prescribed
or allowed by this section, the day of the act, event or default front which the designated period of time
begins to run shall not be included. The last day of the period so computed shall be included unless it is a
Saturday, Sunday or legal holiday in which event the period shall run until the end of the next day which is
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neither a Saturday, Sunday or legal holiday. Intermediate Saturdays, Sundays and legal holidays shall be
excluded in the computation of the time for filing.
(b) Authority to resolve protests. The Chief Procurement Officer shall have the authority, subject to the
approval of the City Manager and the city attorney, to settle and resolve any written protest. The Chief
Procurement Officer shall obtain the requisite approvals and communicate said decision to the protesting
party and shall submit said decision to the City Commission within 30 days after he/she receives the
protest. In cases involving more than $25,000, the decision of the Chief Procurement Officer shall be
submitted for approval or disapproval thereof to the City Commission after a favorable recommendation by
the city attorney and the City Manager.
(c) Compliance with filing requirements. Failure of a party to timely file either the notice of intent to file a
protest or the written protest, together with the required Filing Fee as provided in subsection (f), with the
Chief Procurement Officer within the time provided in subsection (a), above, shall constitute a forfeiture of
such party's right to file a protest pursuant to this section. The protesting party shall not be entitled to seek
judicial relief without first having followed the procedure set forth in this section
(d) Stay of Procurements during protests. Upon receipt of a written protest filed pursuant to the
requirements of this section, the city shall not proceed further with the solicitation or with the award of the
Contract until the protest is resolved by the Chief Procurement Officer or the City Commission as provided
in subsection (b) above, unless the City Manager makes a written determination that the solicitation process
or the Contract award must be continued without delay in order to avoid an immediate and serious danger
to the public health, safety or welfare.
(e) Costs. All costs accruing from a protest shall be assumed by the protestor.
(f) Filing Fee. The written protest must be accompanied by a filing fee in the form of a money order or
cashier's check payable to the city in an amount equal to one percent of the amount of the Bid or proposed
Contract, or $5000.00, whichever is less, which filing fee shall guarantee the payment of all costs which
may be adjudged against the protestor in any administrative or court proceeding. If a protest is upheld by
the Chief Procurement Officer and/or the City Commission, as applicable, the filing fee shall be refunded
to the protestor less any costs assessed under subsection (e) above. If the protest is denied, the filing fee
shall be forfeited to the city in lieu of payment of costs for the administrative proceedings as prescribed by
subsection (e) above.
1.75. SAMPLES - Samples of items, when required, must be submitted within the time specified at no
expense to the City. If not destroyed by testing, bidder(s)/proposer(s) will be notified to remove samples,
at their expense, within 30 days after notification. Failure to remove the samples will result in the samples
becoming the property of the City.
1.76. SELLING, TRANSFERRING OR ASSIGNING RESPONSIBILITIES - Contractor shall not sell,
assign, transfer or subcontract at any time during the term of the Contract, or any part of its operations, or
assign any portion of the performance required by this contract, except under and by virtue of written
permission granted by the City through the proper officials, which may be withheld or conditioned, in the
City's sole discretion.
1.77. SERVICE AND WARRANTY —When specified, the bidder/proposer shall define all warranty,
service and replacements that will be provided. Bidders/Proposer must explain on the Response to what
extent warranty and service facilities are available. A copy of the manufacturer's warranty, if applicable,
should be submitted with your response.
1.78. SILENCE OF SPECIFICATIONS - The apparent silence of these specifications and any
supplemental specification as to any detail or the omission from it of detailed description concerning any
point shall be regarded as meaning that only the best commercial practices are to prevail and that only
materials of first quality and correct type, size and design are to be used. All workmanship and services is
to be first quality.
All interpretations of these specifications shall be made upon the basis of this statement.
If your fnxn has a current contract with the State of Florida, Department of General Services, to supply the
items on this solicitation, the bidder/proposer shall quote not more than the contract price; failure to comply
with this request will result in disqualification of bid/proposal.
1.79. SUBMISSION AND RECEIPT OF RESPONSES - Responses shall be submitted electronically via
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the Oracle System or responses may be submitted in hardcopy format to the City Clerk, City Hall, 3500
Pan American Drive, Miami, Florida 33133-5504, at or before, the specified closing date and time as
designated in the IFB, RFP, RFQ, or RFLI. NO EXCEPTIONS. Bidders/Proposers are welcome to attend
the solicitation closing; however, no award will be made at that time.
A. Hardeopy responses shall be enclosed in a sealed envelope, box package. The face of the envelope,
box or package must show the hour and date specified for receipt of responses, the solicitation number and
title, and the name and return address of the Bidder/Proposer. Hardcopy responses not submitted on the .
requisite Response Forms may be rejected. Hardcopy responses received at any other location than the
specified shall be deemed non -responsive.
Directions to City Hall:
FROM THE NORTH: I-95 SOUTH UNTIL IT TURNS INTO US1. US1 SOUTH TO 27TH AVE.,
TURN LEFT, PROCEED SOUTH TO SO. BAYSHORE DR. (3RD TRAFFIC LIGHT), TURN LEFT, 1
BLOCK TURN RIGHT ON PAN AMERICAN DR. CITY HALL IS AT THE END OF PAN
AMERICAN DR. PARKING IS ON RIGHT.
FROM THE SOUTH: US1 NORTH TO 27TH AVENUE, TURN RIGHT, PROCEED SOUTH TO SO.
BAYSHORE DR. (3RD TRAFFIC LIGHT), TURN LEFT, I BLOCK TURN RIGHT ON PAN
AMERICAN DR. CITY HALL IS AT THE END OF PAN AMERICAN DR. PARKING IS ON RIGHT.
B. Facsimile responses will not be considered.
C. Failure to follow these procedures is cause for rejection of bid/proposal.
D. The responsibility for obtaining and submitting a response on or before the close date is solely and
strictly the responsibility of Bidder/Proposer. The City of Miami is not responsible for delays caused by
the United States mail delivery or caused by any other occurrence. Responses received after the
solicitation closing date and time will be returned unopened, and will not be considered for award.
E. Late responses will be rejected.
F. All responses are subject to the conditions specified herein. Those which do not comply with these
conditions are subject to rejection.
G. Modification of responses already submitted will be considered only if received at the City before the
time and date set for closing of solicitation responses. All modifications must be submitted via the Oracle
System or in writing. Once a solicitation closes (closed date and/or time expires), the City will not consider
any subsequent submission which alters the responses.
H. If hardcopy responses are submitted at the same time for different solicitations, each response must be
placed in a separate envelope, box, or package and each envelope, box or package must contain the
information previously stated in 1.82.A.
1.80. TAXES - The City of Miami is exempt from any taxes imposed by the State and/or Federal
Government. Exemption certificates will be provided upon request. Notwithstanding, Bidders/Proposers
should be aware of the fact that all materials and supplies which are purchased by the Bidder/Proposer for
the completion of the contract is subject to the Florida State Sales Tax in accordance with Section 212.08,
Florida Statutes, as amended and all amendments thereto and shall be paid solely by the Bidder/Proposer.
L81. TERMINATION —The City Manager on behalf of the City of Miami reserves the right to terminate
this contract by written notice to the contractor effective the date specified in the notice should any of the
following apply:
A. The contractor is determined by the City to be in breach of any of the terms and conditions of the
contract.
B. The City has determined that such termination will be in the best interest of the City to terminate the
contract for its own convenience;
C. Funds are not available to cover the cost of the goods and/or services. The City's obligation is
contingent upon the availability of appropriate funds.
1.82. TERMS OF PAYMENT - Payment will be made by the City after the goods and/or services
awarded to a Bidder/Proposer have been received, inspected, and found to comply with award
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specifications, free of damage or defect, and properly invoiced. No advance payments of any kind will be
made by the City of Miami.
Payment shall be made after delivery, within 45 days of receipt of an invoice and authorized inspection
and acceptance of the goods/services and pursuant to Section 218.74, Florida Statutes and other applicable
law.
1.83. TIMELY DELIVERY - Time will be of the essence for any orders placed as a result of this
solicitation. The City reserves the right to cancel such orders, or any part thereof, without obligation, if
delivery is not made within the time(s) specified on their Response. Deliveries are to be made during
regular City business hours unless otherwise specified in the Special Conditions.
1.84. TITLE - Title to the goods or equipment shall not pass to the City until after the City has accepted
the goods/equipment or used the goods, whichever comes first.
1.85.TRADE SECRETS EXECUTION TO PUBLIC RECORDS DISCLOSURE- All Responses
submitted to the City are subject to public disclosure pursuant to Chapter 119, Florida Statutes. An
exception may be made for "trade secrets."
If the Response contains information that constitutes a "trade secret", all material that qualifies for
exemption from Chapter 119 must be submitted in a separate envelope, clearly identified as "TRADF.
SECRETS EXCEPTION," with your firm's name and the Solicitation number and title marked on the
outside.
Please be aware that the designation of an item as a trade secret by you may be challenged in court by any
person. By your designation of material in your Response as a "trade secret" you agree to indemnify and
hold harmless the City for any award to a plaintiff for damages, costs or attomey's fees and for costs and
attomey's fees incurred by the City by reason of any legal action challenging your claim.
1.86. UNAUTHORIZED WORK OR DELIVERY OF GOODS- Neither the qualified
Bidder(s)/Proposer(s) nor any of his/her employees shall perform any work or deliver any goods unless a
change order or purchase order is issued and received by the Contractor. The qualified
Bidder(s)IProposer(s) shall not be paid for any work performed or goods delivered outside the scope of the
contract or any work performed by an employee not otherwise previously authorized.
1.87. USE OF NAME - The City is not engaged in research for advertising,. sales promotion, or other
publicity purposes. No advertising, sales promotion or other publicity materials containing information
obtained from this Solicitation are to be mentioned, or imply the name of the City, without prior express
written permission of the City Manager or the City Commission.
1.88. VARIATIONS OF SPECIFICATIONS - For purposes of solicitation evaluation, bidders/proposers
mast indicate any variances from the solicitation specifications and/or conditions, no matter how slight. If
variations are not stated on their Response,it will be assumed that the product fully complies with the
City's specifications.
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2. Special Conditions
2.1. PURPOSE
The purpose of this Solicitation is to establish a contract, for a Franchise Agreement for Commercial Solid
Waste Hauling Services, as specified herein, from a source(s) of supply that will give prompt and efficient
service fully compliant with the terms, conditions and stipulations of the solicitation.
2.2. DEADLINE FOR RECEIPT OF REQUEST FOR ADDITIONAL
INFORMATION/CLARIFICATION
Any questions or clarifications concerning this solicitation shall be submitted by email or facsimile to the
Purchasing Department, Attn: Yusbel Gonzalez; fax: (305) 400-5104 or email: ygonzalez@ci.miami.fl.us.
The solicitation title and number shall be referenced on all correspondence. All questions must be received
no later than Tuesday, July 13, 2010 at 4:00 PM. All responses to questions will be sent to all prospective
bidders/proposers in the form on an addendum. NO QUESTIONS WILL BE RECEIVED VERBALLY
OR AFTER SAID DEADLINE.
2.3. TERM OF FRANCHISE AGREEMENT
The Proposer(s) qualified and selected to provide the service(s) requested herein (the "Qualified
Proposer(s)") shall be required to execute a Franchise Agreement ("Agreement") with the City, which shall
include, but not be limited to, the following terms:
A. The initial term of the Agreement shall be for five (5) years.
B. The City shall have the option to extend the Agreement for up to three (3) additional one (1) year
periods, at its sole discretion.
C. Extension of the term of the Agreement beyond the initial period is an option of the City to be
exercised in its sole discretion and does not confer any rights upon the Qualified Proposer(s). It should be
noted that any Qualified Proposer(s) that is not renewed for any of the option periods, will not be allowed
to operate within the City limits.
2.4. CONDITIONS FOR RENEWAL
Each renewal of this contract is subject to the following:
(1) Continued satisfactory performance compliance with the specifications, terms and conditions
established herein.
2.5. MINIMUM QUALIFICATIONS OF PROPOSER(S)
In order to qualify, Prospective Proposer shall agree to adhere to all requirements as set forth in the
Franchise Agreement as it may exist, as specified in the attached Draft form, and in its final form.
Additionally, prospective haulers shall meet all of the following minimum qualification requirements • and
provide any and all required documentation pursuant to the same.
The following requirements shall be met by a Prospective Proposer in order to be deemed "qualified" to
provide said services. Each Prospective Proposer:
a) Shall agree to all terms, conditions, and provisions of the final Franchise Agreement, and agree to
execute the same upon being deemed qualified. (See attached Draft of the Franchise Agreement in the
Header/Notes and Attachments section of this RFQ, in the Oracle Sourcing System)
b) Shall, agree to adhere, at the time of application and at all tithes during the period covered by the
Franchise Agreement, to all applicable Codes and Ordinances of the City, State and Federal regulations.
c) Shall not owe, or be in arrears for any sum to the City and/or under any prior/existing Agreement,
unless expressly approved by the City prior to the submission due date.
d) Shall possess equipment capable of providing safe and efficient service, and have sufficient
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personnel to perform the same.
e) If an individual, or in the case of a firm, corporation, partnership, association or organization, any
person(s) having any financial, controlling, or managing interest therein, should be of good moral
character.
f) Shall maintain proper insurance coverage as defined in accordance with Section 2.12, Insurance
Requirements, of the RFQ. The City shall be listed as an Additional Insured for liability and all insurances
must be approved by the City's Risk Management Department prior to execution of the Agreement.
g) Shall complete in full and return, along with the RFQ response, the attached Attachment
A, Attestation of Qualifications, located in the Header/Notes and Attachments Section of this RFQ in the
Oracle Sourcing system, and provide all its required information and documentation, which shall, in part,
be utilized by the City to determine qualifications.
h) Shall agree to furnish a performance bond executed by a surety company duly authorized to do
business in the State of Florida, which shall be counter -signed by an agent for the company, resident in the
State of Florida, to the Purchasing Department within ten (10) business days after receipt of the Notice of
Award and prior to final execution of the Agreement by the City.
FAILURE TO MEET ANY OF THE ABOVE MINIMUM QUALIFICATION REQUIREMENTS
AND/OR COMPLETE AND RETURN ATTACHMENT "A". ATTESTATION OF
QUALIFICATIONS. MAY DISQUALIFY A PROSPECTIVE PROPOSER FROM PROVIDING
COMMERCIAL SOLID WASTE HAULING SERVICES WITHIN THE CITY OF MIAMI.
2.6. PERMITS AND LICENSES
The Qualified Proposer(s) shall obtain and pay for all licenses, permits, inspection fees or any other costs
that may be required to perform these services. Damages, penalties, and/or fines unposed on the City for
any Qualified Proposer's failure to obtain required licenses, permits or fines shall be borne solely by the
Proposer. Additionally, copies of all licenses required to complete this work should be included with
response to this RFQ.
Any Proposer who submits a Proposal under this RFQ and is deemed qualified to provide Commercial
Waste Hauling Services within the City of Miami jurisdictional limits, shall meet the City's Business Tax
Receipt requirements in accordance with Chapter 3.1.1, Article I of the City of Miami Charter. Qualified
Proposer(s) shall provide a copy of the City of Miami's Business Tax Receipt to the Purchasing
Department within ten (10) business days after receipt of Notice of Award.
2.7. LEGAL REQUIREMENTS
This RFQ is subject to all applicable federal, state, county and local laws, ordinances, rules and regulations
that in any manner affect any and all of the services covered herein. Lack of knowledge by the Qualified
Proposer(s) shall in no way be cause for relief from responsibility.
2.8. PERFORMANCE
The Qualified Proposer(s) will be responsible for performing the work necessary to meet City standards in
a safe, neat, and good workmanlike manner, using only generally accepted methods in carrying out the
work, and complying with all federal and state laws, and all ordinances and codes of the City relating to
such work.
2.9. WORK ASSIGNMENTS
All work assignments during the Agreement period will be on an "as needed" basis, complying with
notification requirements. The City offers no guarantee as to the number or frequency of work assignments
under the terms of this Agreement.
2.10. USE OF SUBCONTRACTORS
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The Qualified Proposer shall not, at any time during the tenure of the Agreement, subcontract any part of
his/her operations or assign any portion or part of the Agreement, to Subcontractor(s) except under and by
virtue of permission granted by the City through the proper officials in writing.
Nothing contained in this RFQ shall be construed as establishing any contractual relationship between any
subcontractor and the City.
The Qualified Proposer shall be fully responsible to the City for all of the acts and omissions of any
subcontractor and their employees for the performance of work under this RFQ, and for any acts and
omissions of persons employed by Qualified Proposer.
2.11. ASSIGNMENT
The performance of this Contract shall not be transferred pledged, sold, delegated or assigned, in whole or
in part, by the Contractor without the written consent of the City. It is understood that a sale of the majority
of the stock or partnership shares of the Contractor, a merger or bulk sale, an assignment for the benefit of
creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring
prior City approval.
Any transference without City approval shall be cause for the City to nullify this Contract. Any assignment
without the City's consent shall be null and void. The Contractor shall have no recourse from such
cancellation. The City may require bonding, other security, certified financial statements and tax returns
from any proposed assignee and the execution of an assignment/ assumption agreement in a form
satisfactory to the City Attorney as a condition precedent to considering approval of an assignment.
The Contractor and the City each binds one another, their partners, successors, legal representatives and
authorized assigns to the other party of this Contract and to the partners, successors, legal representatives
and assigns of such party in respect to all covenants of this Agreement.
The term "Contractor" shall have the same meaning as "Franchisee".
2.12. INSURANCE REQUIREMENTS
INDEMNIFICATION
Qualified Proposer(s) shall pay onbehalf of, indemnify and save City and its officials harmless, from and
against any and all claims, liabilities, losses, and causes of action, which may arise out of proposer's
performance under the provisions of the contract, including all acts or omissions to act on the part of
proposer, including any person performing under this Contract for or on proposer's behalf, provided that
any such claims, liabilities, losses and causes of such action are not attributable to the negligence or
misconduct of the City and, from and against any orders, judgments or decrees which may be entered and
which may result from this Contract, unless attributable to the negligence or misconduct of the City, and
from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such
claim, or the investigation thereof.
The Proposer(s) shall famish to City of Miami, c/o Purchasing Department, 444 SW 2nd Avenue, 6th
Floor, Miami, Florida 33130, Certificate(s) of Insurance which indicate that insurance coverage has been
obtained which meets the requirements as outlined below:
(1)
Worker's Compensation
A. Limits of Liability - Statutory - State of Florida
Waiver of subrogation
Employer's Liability
$500,000 for bodily injury caused by an accident, each accident
$500,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
(2) Commercial General Liability (Primary & Non Contributory):
A. Limits of Liability
Bodily Injury and Property Damage Liability - Each Occurrence: $1.000.000.
General Aggregate Limit: $2.000,000.
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Products/Completed Operations: $1,000,000.
Personal and Advertising Injury: $1,000,000.
B. Endorsements Required:
City of Miami included as an Additional insured.
Contingent and Contractual Liability
Premises and Operations Liability
Employees included as insured's,
(3) Automobile Liability
A. Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit.
Including Owned, Hired, Borrowed or Non -Owned Autos
Any One Accident: $1.000.000.
B. Endorsements Required:
City of Miami included as an Additional Insured
(4) Umbrella Liability (Excess Follow Form)
A. Limits of Liability
Each Occurrence Limit: $1.000.000.
Aggregate Limit: S1,000,000.
(5) Performance Bond/Irrevocable Letter of Credit hi the amount of $35,000
City included as obligee on the bond and sole beneficiary on the letter of credit.
The above policies shall provide the City of Miami with written notice of cancellation in accordance
to policy provisions
BINDERS ARE UNACCEPTABLE.
The insurance coverage required shall include those classifications, as listed in standard liability insurance
manuals, which most nearly reflect the operations of the proposer.
All insurance policies required above shall be issued by companies authorized to do business under the
laws of the State of Florida, with the following qualifications:
The Company must be rated no less than "A-" as to management, and no less than "Class V" as to financial
strength, by the latest edition ofBest's Key Rating Guide, published by A.M. Best Company, Oldwick,
New Jersey, or its equivalent. All policies and/or certificates of insurance are subject to review and
verification by Risk Management prior to insurance approval,
NOTE: CITY RFQ NUMBER AND/OR TITLE OF RFQ MUST APPEAR ON EACH CERTIFICATE.
Compliance with the foregoing requirements shall not relieve the proposer of his/her liability and
obligation under this section or under any other section of this Agreement.
--If insurance certificates are scheduled to expire during the contractual period, the Proposer shall be
responsible for submitting new or renewed insurance certificates to the City at a minimum of ten (10)
calendar days in advance of such expiration.
--In the event that expired certificates are not replaced with new or renewed certificates which cover
the contractual period, the City shall:
(1) Suspend the contract until such time as the new or renewed certificates are received by the City in
the manner prescribed in the Request for Qualifications.
(2) The City may, at its sole discretion, terminate this contract for cause and seek re procurement
damages from the Proposer in conjunction with the General and Special Terms and Conditions of the
Request for Qualifications.
The Proposer shall be responsible for assuring that the insurance certificates required in conjunction with
this Section remain in force for the duration of the contractual period; including any and all option terms
that may be granted to the Proposer.
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2.13. HOLD HARMLESS
The Qualified Proposer(s) shall hold harmless and indemnify the City for any errors in the provision of
services and for any fines, which may result from the fault of the Qualified Proposer(s) and as stated in the
previous section entitled Insurance Requirements.
2.14. PRE-BID/PRE-PROPOSAL CONFERENCE
None
2.15. CONTRACT ADMINISTRATOR
Upon award, contractor shall report and work directly with Frederick Hobson, Director of the Department
of Solid Waste, who shall be designated as the Contract Administrator.
2.16. PERFORMANCE BOND REQUIREMENTS
The Qualified Proposer (s) agrees to maintain, for the term of this Agreement, a Performance l3ond,
executed by a surety company duly authorized to do business in the State of Florida, which shall be
counter -signed by an agent for the company, resident in the State of Florida. The amount of the bond shall
be equal to the Qualified Proposer's previous 12 month franchise fees paid to the City (including the annual
franchise fee, monthly 24% franchise fee, annual per account fee, and any other franchise fees paid to the
City) or a minimum of $35,000, whichever is greater, as security for the faithful performance of the
Franchise Agreement. The surety shall have a rating classification of "A-" and a financial category of Class
V as evaluated in the current Best's Key Rating Guide, Property Liability. City of Miami shall appear
listed as obligee. In lieu of a Performance Bond, the Qualified Proposer may submit an Irrevocable Letter
of Credit, cash, certified check, treasurer's or cashier's check issued by a responsible bank or trust company
payable to the City of Miami.
The Performance Bond, in a form acceptable to the City, shall be submitted together with four (4)
original signed copies of the Franchise Agreement and an approved insurance certificate(s), listing
the City as Additional Insured, to the Purchasing Department within ten (10) business days after
receipt of Notice of Award, and prior to final execution of the Agreement by the City.
NOTE: Performance Bonds placed under the current Commercial Waste Hauling Services Franchise
Agreement # 03-04-107 cannot be rolled over or transferred to the new Commercial Solid Waste Franchise
Agreement solicited through RFQ 222246. This is a new solicitation process and current and new franchise
holders are required to meet the performance bond requirement. Once the new Franchise Agreement is
fully executed, the performance bonds submitted under the Commercial Waste Hauuling Services Franchise
Agreement # 03-04-107 will be returned to the respective franchisees.
2.17. USE OF PREMISES
The Qualified Proposer(s) shall confine his/her equipment, apparatus, the storage of materials, and the
operation of his/her workmen to the limits indicated by law, ordinances, permits, or direction of the project
manager, and shall not unreasonably encumber the premises with his/her materials. The Qualified
Proposer(s) shall take all measures necessary to protect his own materials.
2.18. LABOR, SUPERVISORS, EQUIPMENT AND MATERIALS
The Qualified Proposer(s) shall furnish, at his/her own expense, all personnel, supervision, equipment,
materials and supplies necessary for the satisfactory completion of the services specified in this RFQ.
2.19. EMPLOYEES ARE RESPONSIBILITY OF' QUALIFIED PROPOSER(S)
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All employees of the Qualified Proposer(s) shall be considered to be, at all times, the sole employees of the
Qualified Proposer(s) under its sole direction and not an employee or agent of the City.
All applicable taxes, fringe benefits, and training for all personnel for the performance under the
Agreement shall be the sole responsibility of the Qualified Proposer(s).
2.20. FRANCHISE AGREEMENT
Although the purpose of this RFQ is to secure an Agreement that can satisfy the total needs of the City or
of a specific City agency, it is hereby agreed and understood that this solicitation does not constitute the
exclusive rights of the Qualified Proposer(s) to perform all the services that may be generated by the City
in conjunction with this Solicitation, when deemed to be in the City's best interests to establish a separate
contract to provide said services.
2.21. LIMITED AGREEMENT EXTENSION
Any specific work assignment which commences prior to the termination date of the Agreement and which
will extend beyond the termination date shall, unless terminated by mutual written agreement by both
parties, continue until completion at the same rates, terms and conditions as set forth herein.
2.22. DAMAGES TO PUBLIC/PRIVATE PROPERTY
Qualified Proposer(s) shall carry out the work with such care and methods as not to result in damage to
public or private property adjacent to the work. Should any public or private property be damaged or
destroyed, the Qualified Proposer, at his/her expense, shall repair or malce restoration as is practical and
acceptable to the City and/or owners of destroyed or damaged property promptly within a reasonable length
of time. (Not to exceed one month from date damage was done).
2.23. SAFETY MEASURES
Qualified Proposer(s) shall take all necessary precautions for the safety of employees, and shall erect and
properly maintain at all times all necessary safeguards for the protection of the employees and the public.
Danger signs warning against hazards created by his/her operation and work in progress must be posted.
All employees of the Qualified Proposer(s) shall be expected to wear safety glasses or goggles, appropriate
clothing, and hearing protection when and wherever applicable. The Qualified Proposer(s) shall use only
equipment that is fully operational and in safe operating order. Qualified Proposer(s) shall be especially
careful when servicing property when pedestrians and/or vehicles are in close proximity - work shall cease
until it is safe to proceed.
2.24. TERMINATION
A. FOR DEFAULT
If Qualified Proposer(s) defaults in its performance under this Contract and does not cure the default
within 14 days after written notice of default, the City Manager may terminate this Contract, in whole or in
part, upon written notice without penalty to the City of Miami. In such event the Qualified Proposer(s) shall
be liable for damages including the excess cost of procuring similar supplies or services: provided that if,
(1) it is determined for any reason that the Qualified Proposer(s) was not in default or (2) the Qualified
Proposer's failure to perform is without his or his subcontractor's control, fault or negligence, the
termination will be deemed to be a termination for the convenience of the City of Miami.
B. FOR CONVENIENCE
The City Manager may terminate this Contract, in whole or in part, with or without cause, upon 30 days
prior written notice. If this Contract is for supplies, products, equipment, or software, and so terminated for
the convenience by the City of Miami the Qualified Proposer(s) will be compensated in accordance with an
agreed upon adjustment of cost. To the extent that this Contract is for services and so terminated, the City
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of Miami shall be liable only for payment in accordance with the payment provisions of the Contract for
those services rendered prior to termination.
2.25. ADDITIONAL TERMS AND CONDITIONS
No additional terms and conditions included with the solicitation response shall be evaluated or
considered, and any and all such additional terms and conditions shall have no force or effect and are
inapplicable to this solicitation. If submitted either purposely, through intent or design, or inadvertently,
appearing separately in transmittalletters, specifications, literature, price lists or warranties, it is understood
and agreed that the General and Special Conditions in this solicitation are the only conditions applicable to
this solicitation and that the bidder's/proposer's authorized signature affixed to the bidder's/proposer's
acknowledgment form attests to this.
2.26. PRIMARY CLIENT (FIRST PRIORITY)
The successful bidder(s)/proposer(s) agree upon award of this contract that the City of Miami shall be its
primary client and shall be serviced first during a schedule conflict arising between this contract and any
other contract successful bidder(s)/proposer(s) may have with any other cities and/or counties to perform
similar services as a result of any catastrophic events such as tornadoes, hurricanes, severe storms or any
other public emergency impacting various areas during or approximately the same time.
2.27. CHANGES/ALTERATIONS
Proposer may change or withdraw a Proposal at any time prior to Proposal submission deadline; however,
no oral modifications will be allowed. Written modifications shall not be allowed following the proposal
deadline.
2.28. ADDITIONAL SERVICES
Services not specifically identified in this request may be added to any resultant contract upon successful
negotiation and mutual consent of the contracting parties.
2.29. ADDITIONAL QUALIFIED PROPOSER(S)
It is expressly agreed that in no event shall the City be liable or responsible to the Qualified Proposer(s) or
its customers for delay or temporary interruption in service because of disputes between the parties or any
cause over which the City has no control. In the event of any condition which makes performance of
contracts entered into under the terms and conditions of this Agreement impossible, Qualified Proposer(s)
agrees that the City shall have the right to invite, notify, and qualify other Prospective Proposers of the
opportunity to provide collection and disposal services.
In addition, Qualified Proposer(s) agree that the City has the right to add additional Qualified
Proposer(s), (in the event any of the Proposers arecancelled, terminated, or the Proposers otherwise cease
to do business or provide adequate service within. the City), who meet all requirements of applicable laws,
codes, rules and regulations and will execute City furnished Agreements, to provide collection and
disposal services, as determined necessary by the City, through the duration of the contract in order to
insure availability and expediency of services. Each proposer who seeks to be added to the Commercial
Solid Waste Hauling Services contract shall be evaluated, consistent with the requirements of this RFQ, to
determine qualifications.
2.30. AUDIT AND INSPECTION RIGHTS
The City may, at reasonable times, and for a period of up to five (5) years following the date of final
payment by the Qualified Proposer(s) to City under this Agreement, audit, or cause to be audited, those
books and records of Qualified Proposer(s) which are related to Qualified Proposer's performance under
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this Agreement. Qualified Proposer(s) agrees to maintain all such books and records at its principal place
of business for a period of five (5) years after final payment is made under this Agreement.
City shall have the following inspection and audit rights as provided in §18-101 and § 18-102 of the City
Code:
18-101 , Inspections
(a) Solicitations and contractual provisions. City contracts shall provide that the city may inspect
goods or services at the facilities of the contractual party and perform tests to determine whether they
conform to solicitation requirements contained in invitation for bids or requests for proposals or, after
award, to the terms and conditions of the contract. Such inspections and tests shall be performed in
accordance with the terms and conditions of the solicitation and contract.
(b) Procedures for tests and inspections.
(1) The chief procurement officer may specify general operational procedures governing the test and
inspection of all goods or services, sales or leases being performed under city contract by city
departments, offices and individual purchasing agents.
(2) The chief procurement officer shall inspect or supervise the inspection of all deliveries of
supplies, materials, equipment, contractual services or performance under lease agreements to
determine conformance with the terms and conditions upon which the order or contract was based.
Any purchasing agent or department may be authorized by the chief procurement officer to inspect
deliveries or contract performance in the manner stipulated with the approval of the city manager.
(3) The chief procurement officer may prescribe chemical, physical and other performance tests for
goods or services, including samples submitted with bids or offers and samples of deliveries and
performance to determine their quality and conformance with the terms and conditions of the
solicitation or contract. In the performance of such tests or inspections, the chief procurement officer
shall have the authority to make use of the laboratory facilities of any department of the city or any
outside laboratory or special expertise available to evaluate service performance.
(c) Conduct of inspections. Whenever possible, inspections and tests shall be performed so as not to
unduly delay or inconvenience the contractual parties. Contractual parties shall make available at no
charge to the city all reasonable facilities and assistance, in order to facilitate the performance of
inspections or tests by city representative.
(Ord. No. 12271, § 2, 8-22-02)
18-1:02 . Audits.
(a) Solicitations and contractual provisions. City contracts shall provide that the city may inspect
the books and records of contractual parties to determine conformance with the solicitation
requirements contained in the invitation for bids or request for proposals or, after award, with the terms
and conditions of' the contract.
(b) Procedures for audits.
(1) The chief procurement officer may specify the general procedures for inspection of books and
records and for the conduct of audits of all goods or services, sales or leases under city contracts.
(2) An audit may be required when, in respect to an actual or prospective contractual party, there is:
a. A question as to the adequacy of accounting policies or cost systems;
b. A substantial change in the methods or levels of operations;
c. Previous unfavorable experience indicating doubtful reliability of estimating, accounting or
purchasing methods;
d. A tack of cost experience due to the procurement of a new supply or service; or
e. Other evidence that an audit is in the city's best interests as determined by the chief procurement
officer, the city manager or the city commission.
(c) Conduct of audits. Whenever possible, audits shall be performed so as not to unduly delay or
inconvenience the contractual party. Contractual parties shall make available at no charge to the city all
reasonable facilities andassistance, for the convenience of the city representatives performing the
audit.
(Ord. No. 12271, § 2, 8-22-02)
The City may, at reasonable times during the term hereof, inspect Qualified Proposer's facilities and
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perform such test, as the City deems reasonably necessary, to determine whether the goods or services
required to be provided by Qualified Proposer(s) under this Agreement conform to the terms hereof, if
applicable. Qualified Proposer(s) shall make available to the City reasonable facilities and render
assistance to facilitate the performance of all tests and/or inspections by City representatives. Alt tests and
inspections shall be subject to, and made in accordance with, the provisions of Sections 18-95, 18-96 and
18-97, of the City Code, as same may be amended or supplemented, from time to time. Qualified
Proposer(s) also agrees to allow City auditors, during regular business hours and after reasonable notice, to
audit, inspect and examine the Qualified Proposer's financial records (as they relate to City of Miami
revenue) including all fiscal books and records, sales tax returns, bank statements, general ledger (vouching
City of Miami revenue to the G/L), contract/agreement between Qualified Proposer(s) and customer and
any other financial information deemed necessary, insofar as they relate to City accounts, as well as, the
Qualified Proposer(s) entire customer base, in order to confirm the Qualified Proposer's compliance with
the Franchise Agreement. Qualified Proposer(s) further agrees to pay a one and one half percent (1.5%)
penalty per month on any monies due and owing the CITY, as a direct result of an audit from whatever
applicable revenue stream during the Agreement term. In addition, if a City Audit reveals that Qualified
Proposer(s) under reported gross receipts, and results in additional revenue due the City in the amount of
$20,000.00 (per Fiscal Year) or more, Qualified Proposer(s) agrees to pay for the cost of said Audit. Upon
audit notification, Qualified Proposer(s) agrees to deliver all financial information and books and records to
within the City limits, if said information is maintained outside the City boundaries.
Qualified Proposer(s) agrees to allow City auditors the right to copy any financial related source documents
when deemed necessary, to substantiate an audit finding. Also, any Qualified Proposer(s) requesting credit
or refund for Franchise Fees paid to the City in error, will be required to pay for the auditing hours
necessary to verify the claim that is performed by our City auditors. As an alternative, Qualified
Proposer(s) may retain their own outside CPA Firm to verify their claim. Qualified Proposer(s)
/ Franchisees must pay for the hours necessary to verify the work of the outside CPA Firm.
2.31. TRUTH IN NEGOTIATION CERTIFICATE.
Execution of the resulting agreement by the Successful Proposer shall act as the execution of
truth -in -negotiation certificate stating that wage rates and other factual unit costs supporting the
compensation of the resulting Agreement are accurate, complete, and current at the time of contracting.
The original contract price and any additions thereto shall be adjusted to exclude any significant sums by
which City determines the contract price was increased due to inaccurate, incomplete, or non -current wage
rates and other factual unit costs. All such contract adjustments shall be made within one (1) year
following the end of the Agreement.
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3. Specifications
3.1. SPECIFICATIONS/SCOPE OF WORK
The City of Miami (hereinafter referred to as "City") is seeking to qualify private commercial haulers
(herein referred to as "haulers" or "contractors") to enter into city-wide Franchise Agreements (hereinafter
referred to as "Agreement") to provide collection and disposal of all Commercial Solid Waste and
recyclable materials, excluding biomedical, biological, and hazardous waste, to its commercial
establishments and multifamily residences with four (4) or more contiguous living units, totaling
approximately 21,000 accounts in 34 square miles. The RFQ includes garbage, trash, specialized roll -off
and recycling services.
Extra -ordinary material, unacceptable waste (acid, batteries, auto parts, excavating materials, construction
and demolition debris, roofing materials, wood, pipe, steel, gas tanks, etc.), dead animals, abandoned
vehicles/boats and parts, large equipment and parts thereto will not be collected by the hauler unless
specifically required by the generator and agreed to by the hauler.
The Agreement shall enable qualified haulers to provide these services 'within the City for the term
specified in the Agreement. Contractor shall be responsible for seeking their own commercial accounts
within the City.
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4. Submission Requirements
4.1. SUBMISSION REQUIREMENTS
THE CITY OF MIAMI WILL ONLY ACCEPT HARD COPY RESPONSES FOR THIS RFQ.
PROPOSER MUST SUBMIT AN ORIGINAL RESPONSE ALONG WITH FIVE (5) CONES.
The following documents should be submitted as part of the Response to this RFQ.
a) Copy of hauler's current Business Tax Receipt / Occupational License.
b) Attestation of Oualifications form, Attachment A, completed in full, signed, and notarized.
(This document is located in the Header / Notes and Attachments Section of this RFQ, in the Oracle
Sourcing System.)
c) Submission of all documentation, as a minimum, as required in the Attestation of Qualifications
form, Attachment A,
d) Certification Statement and Certifications section of the Request for Qualifications # 222246
solicitation document must be completed in full and signed.
FAILURE TO SUBMIT THE ABOVE REQUIRED DOCUMENTATION AND OTHER
REQUIRED INFORMATION MAY DISQUALIFY YOUR RESPONSE.
Note: Prospective Proposers are not required to submit along with their response an executed copy of the
Commercial Solid Waste Franchise Agreement. Section 2.16, Performance Bond Requirements,
indicates when to submit executed copies of the Franchise Agreement
4.2. OPTIONAL REQUEST
As part of this RFQ and as the City is receptive to new and innovative ideas, the City is providing the
option for any Proposer to submit concepts or ideas that are innovative in nature and provide for more
efficient commercial solid waste services. These innovative concepts could identify methods to accomplish
the City's goals of better City regulation, to promote greater competition, innovative or innovative services
and services to promote the beautification of the City and the health and welfare of its citizens. This section
shall not create any obligation on the City to enter into any Agreement based on the innovative idea(s), nor
include the idea(s) in the final Agreement. However, this information may, at the City's sole option, be
considered and incorporated in any final Agreement
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